' KHAWAJA MUHAMMAD SAEED, J.--- This appeal, with the leave of the Court, is directed against the judgment of the High Court passed on 8-1-2001, whereby the writ petition filed by the appellants, herein, was rejected while that of respondent No,2, Muhammad Iqbal Anjum, was accepted.
2. The dispute between the parties is in respect of Khalsa Land comprising Survey No,93 measuring 8 Marlas, 1 Sarsahi situate in Lower Plate Muzaffarabad. Respondent No,2, Muhammad Iqbal Anjum, applied for the grant of "Teh Zimini" of this land in his favour by claiming his possession over the same land and further that he had got no house or residential plot in Muzaffarabad City. The Collector, District Muzaffarabad, after taking necessary proceedings under the Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985, sanctioned "Teh Zimini" in his favour vide his order, dated 31-3-1997. In the light of this order a mutation was later on sanctioned in his favour. The order of sanction of "Teh Zamini" passed by the Collector, District Muzaffarabad was assailed in a revision petition by appellant No,1, before Additional Commissioner Revenue, which was dismissed by him vide his order, dated 11-6-1998. Thereafter, both the appellants, herein, preferred a revision petition before the Member, Board of Revenue who while allowing the same set aside the order of Collector District Muzaffarabad granting "Teh Zamini" rights to Muhammad Iqbal Arijum on 31-3-1997. However, the learned Member, Board of Revenue held that the Khalsa land in dispute shall remain reserved for the common use of the people of the locality. This order was assailed by Muhammad Iqbal Anjum through a writ petition in the High Court on the ground that the "Teh Zamini" rights were granted in his favour by the Collector, District Muzaffarabad in accordance with the law, therefore, the Member, Board of Revenue was not justified to cancel the same. He further pleaded that a house was constructed by him in Survey No,1785 adjacent to the Khalsa land in dispute. On account of difference between him and his wife Mst. Shahzadi Gul-e- Shewar, a dispute regarding the ownership of the said house was taken to the Court of law which was resolved by the Court in the light of the arbitration award in favour of his wife who subsequently transferred the same in favour of appellant No,2, through a sale-deed attested on 2- 1-1997. In the sale-deed it was specifically stated that vendee, Haji Muhammad Ejaz Hussain, would have no right regarding the adjacent Khalsa land under dispute in the present litigation. The divorced wife of the appellant had also executed an agreement at the time of her divorce wherein she had stated that she would not claim any right in the Khalsa land, the subject-matter of the dispute in the present litigation. He further pleaded that on the day of execution of sale-deed vendee Haji Muhammad Ejaz Hussain, appellant No,2, also executed an agreement in favour of said respondent, wherein he expressly stated that he shall have no claim regarding the Khalsa land measuring 8 Marlas, 1 Sarsahi. In light of these facts he claimed that appellants, herein were not justified to invoke the revisional jurisdiction of the Additional Commissioner, Revenue and Member, Board of Revenue before whom even otherwise second revision petition was not competent. The appellant herein, also filed a writ petition in the High Court in which they partly challenged the order passed by the Member, Board of Revenue, whereby he after cancelling the land in dispute from the name of respondent No,2 had held that it shall remain reserved for the common use of the people of the locality. They prayed that as this land was in their exclusive possession and is adjacent to the house which was purchased by appellant No,2 from the divorced wife of respondent No,2, therefore, its "Teh Zamini" should have been granted in their favour. Both these writ petitions were consolidated and disposed of through judgment under challenge. The learned Chief Justice in the High Court restored the order of Collector District Muzaffarabad where "Teh Zamini" rights were granted in favour of Muhammad Iqbal Anjum, respondent No,2, in the light of the documentary evidence relied upon by respondent No,2 and discussed'by us in the earlier part of this judgment and further on the ground that second revision petition was not competent before the Member, Board of Revenue.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, vehemently criticized the judgment of the High Court. According to him the learned Chief Justice of the High Court has committed an error in holding that second revision petition was not competent before the Member, Board of Revenue. According to him under section 164 of the West Pakistan Land Revenue Act, 1967, the Board of Revenue has got wide powers to entertain revision petitions and no bar in this regard has been laid down under the provisions of the said Act, on the exercise of revisional jurisdiction by the Board of Revenue. The learned counsel for the appellants relied on section 164 of the. West Pakistan Land Revenue Act, 1967, as well as on an unreported judgment of this Court titled Muhammad Yusuf Khan v. Board of Revenue and others, decided on 31-7-2001. He further contended that on 12-1-1995, an agreement was executed by respondent No,2, whereby he had given possession of the house alongwith the disputed land to appellant No,2. By non-reading this document, -in the estimation of the learned counsel for the appellants, a grave error has been committed by the High Court. He further argued that respondent No,2, and his divorced wife in the light of above-referred agreement, were not justified to take contradictory stand regarding the possession of open space. He further argued that no reason was mentioned by the Collector, District Muzaffarabad in granting "Teh Zamini" rights to respondent No,2, therefore, the order granting "Teh Zamini" rights being violative of rules, was liable to be ignored. He in support of his contention relied on an unreported judgment of this Court titled Muhammad Yusuf Khan v. Board of Revenue- and others Civil Appeal No,57 of 2001, decided on 31-7-2001.
4. On the other hand Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, argued that second revision petition was not competent before the Board of Revenue, therefore, the order passed by it is without lawful competence. He in support of his contention placed reliance upon cases titled Haji Samad Khan and others v. Khalid Khan and others 1985 SCMR 770 and Ahmed Khan and 2 others v. Member, Board of Revenue, Peshawar and 4 others PLD 1986 Pesh.
67. He further argued that it is an admitted fact that the land in dispute is in the possession of his client, therefore, under law he was justified to obtain sanction from the Collector of the District as he had no house or residential plot in his name. According to the learned counsel the order granting "Teh Zamini" right passed by the Collector, District Muzaffarabad has not been made available on the record of this Court. In the absence of this order it cannot be presumed that Collector, District Muzaffarabad without satisfying himself about the requirements of rules, arbitrarily issued order of sanction of disputed piece of Khalsa land in favour of his client. This point was not raised by the appellants before the High Court, therefore, the same cannot be raised by them before this Court. He in support of his contention relied upon following authorities:--
(1) Raja Muhammad Hayat Khan v. Board of Revenue, AJ&K and 3 others 1999 YLR 147; (2)
Muhammad Kabir Khan and 4 others v. Naseer Ahmad Khan and 3 others 2000 MLD 1600; and (3)
Ghulam Muhammad v. Custodian of Evacuee Property, Azad Jammu and Kashmir Government, Muzaffarabad and 3 others 1983 CLC 1181.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The first question which needs determination is, whether the Board of Revenue was competent to entertain second revision petition of the appellants. The learned Chief Justice of the High Court has answered this question in negative by holding that Board of Revenue and the Additional Commissioner Revenue had revisional jurisdiction, therefore, as the Additional Commissioner Revenue having exercised the revisional powers, the same could not be exercised against the same order by the Member, Board of Revenue. The reliance was placed by the learned counsel upon a case titled Haji Samad Khan and others v. Khalid Khan and others 1985 SCMR 770. The same authority was referred before the High Court and has been relied upon by the said Court while holding the second revision was not competent before the Board of Revenue. This authority is distinguishable and has nothing common with the facts of the present case. In this case the proposition was raised in light of section 56 of the N.-W.F.P. Tenancy Act, 1955, which was as follows:-- "The Board of Revenue or the Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him."
6. While interpreting this provision of the N.-W.F.P. Tenancy Act, 1955, the Supreme Court also concurred with the learned Judges of the High Court that once the Commissioner has exercised the revisional jurisdiction conferred upon him under section 56 of the N.-W.F.P. Tenancy Act, 1955, the Board of Revenue would not be competent to exercise the same powers with respect to the same case under the said section. However, in these cases the appeals were allowed by the Supreme Court of Pakistan under the provisions contained in Martial Law Regulation No,115 of 1972.
We have already reproduced section 56 of the Tenancy Act, 1955. It appears appropriate to reproduce in toto section 164 of the West Pakistan Land Revenue Act, 1967, which deals with the revisional powers of various authorities created under this Act. Section 164 is as follows:-- "Revision.--- (1) The Board of Revenue, may, at any time, on its own motion, or on an application made to it within ninety days of the passing of an order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.
(2) A Commissioner or Collector may, at any time, of his own motion or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by any Revenue Officer under his control.
(3) If in any case in which a Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.
(4) The Board of Revenue may, in any case call for under subsection (1) and a Commissioner may in any case call for under subsection (2) or reported to him under subsection (3) pass such orders as it or he thinks fit: ' Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard."
7. Subsection (2) of this section is couched in the same words in which section 56 of the N.-W.F.P.
Tenancy Act, 1955, has been drafted. Under subsection (2) of the West Pakistan Land Revenue Act, 1967, a Commissioner or Collector may, at any time, call for the record of any case pending before, or disposed of by, any Revenue Officer under his control, whereas the powers of revision of the Board of Revenue have been specifically mentioned in subsection (1). From the perusal of this subsection, it becomes clear that the revisional jurisdiction conferred upon the Board of Revenue under this provision of law is separate and is not subject to restriction that if the revisional jurisdiction has been exercised by the Commissioner Revenue then in that case these powers shall not remain available to the Board of Revenue. We may say in the light of subsection (2) that if revisional powers have been exercised by the Collector then such jurisdiction shall not be exercised in second revision petition by the Commissioner. The revisional powers of the Board of Revenue are very vast and cannot be curtailed merely on the ground that in this case the revisional powers were also exercised by the Commissioner. In Khuda Bakhsh v. Member, Board of Revenue 1976 SCMR 26, it was held that section 164 confers very wide powers of revision to the Board of Revenue against any order made by the subordinate Revenue Officer. It was further laid down that the only condition is that the Board of Revenue must consider the case fit for its interference, and further that the revisional powers must be exercised by the Board of Revenue after prior notice to the parties. Relevant observations recorded by the Supreme Court of Pakistan at page 27 are as follows:-- "On its plain reading, the section confers very wide power of revision of any order made by the subordinate officer, the only condition being that the Board considers the case 'fit' for its interference. The only other condition is of a prior notice. In other respects the power is unqualified."
8. In Khair Din v. I.U. Khan, Member, Board of Revenue PLD 1968 Lah. 11, it was held that it was competent for the Member, Board of Revenue to entertain a second revision petition, therefore, the view taken in exercise of such jurisdiction was not open to challenge on that score only.
9. From the reports of these authorities alongwith section 164 of the West Pakistan Land Revenue Act, 1967, reproduced by us in earlier part of this judgment, it is held that in appropriate cases where Board of Revenue is satisfied that some illegality or irregularity amounting to illegality has been committed in passing any order by the subordinate authorities, it shall have jurisdiction to entertain the second revision petition subject to the conditions laid down in subsection (1) of section 164 of the West Pakistan Land Revenue Act, 1967. So, on this ground the order of the Member, Board of Revenue was not open to challenge before the High Court in its writ jurisdiction.
10. The second objection of the learned counsel for the appellants is that as previously the possession of the house alongwith the disputed Khalsa land was transferred to his client by respondent No,2, therefore, he was not justified to move the Collector, District Muzaffarabad for obtaining his sanction for the "Teh Zamini" of this vacant plot in his favour. The documents which the appellants have relied, even if admitted as correct, were executed in the year 1995. On 2-1-1997, appellant No,2 obtained sale-deed of the adjacent house from Mst. Shahzadi Gul-eShehwar in which it was specifically mentioned that the vendee shall have no concern with the land comprising Survey Nq.93 measuring 8 Marlas, 1 Sarsahi. On the same date, Mst. Shahzadi Gul-e- Shahwar, the divorced wife of respondent No,2, executed an agreement in favour of respondent No,2, wherein she stated in clause (5) that she has no right or concern whatsoever with the disputed piece of Khalsa land comprising Survey No,93 measuring 8 Marlas, 1 Sarsahi. Both the appellants are real brothers. Haji Muhammad Ejaz Hussain, appellant No,2, also executed an agreement in favour of respondent No,2 on the same date wherein he gave in writing that the disputed plot is in possession of Iqbal Anjum and he has no concern with it. In clause (4) of the same agreement deed it was stated that 10 feet land out of the plot in dispute shall be used by the parties as common path. These admitted documents make it clear that the appellants had no concern with the land in dispute and that they admitted the possession of respondent No,2 over the disputed piece of Khalsa land. Respondent No,2, has clearly stated in his writ petition before the High Court as well as in the concise statement before us that he applied for the grant of "Teh Zamini" to the Collector, District Muzaffarabad by claiming his possession over the suit-land and further that he has no house or residential plot in Muzaffarabad City. These facts have not been controverted even before us by placing on record any such document showing respondent No,2 as owner of any house or plot in Muzaffarabad City. Rather the previous decisions of the Courts including this Court have been brought on record by the appellants themselves, wherein the ownership dispute in respect of a house was finally resolved against respondent No,2, and in favour of his divorced wife Mst. Shahzadi Gul-e-Shehwar. In the absence of contrary material it would not be proper for us to annul the order of the Collector, District Muzaffarabad because the presumption of law is that like any other official acts this order was passed strictly in conformity with the legal requirements. No doubt such presumption was rebuttable but as said earlier no such material has been made available before us to form opinion against this order. The second objection of the learned counsel for the appellants against the judgment of the High Court, therefore, is without substance. The same, therefore, is repelled.
' In view of above, finding no force in this appeal, the same stands dismissed with costs.