MUHAMMAD SAEED SHEIKH, MEMBER (JUDICIAL-V) -- Mian Ahmad Bakhsh, etc. Petitioners have filed this revision petition under Section 163 of Land Revenue Act, 1967 against Mst. Fazal Bibi, etc. Respondents feeling aggrieved by order dated 16.10.1998 passed by Additional Commissioner (Consolidation) Bahawalpur Division, Bahawalpur whereby he dismissed the revision of petitioners.
2. Brief facts of the case are that Mian Imam Bakhsh "Sajjada Nasheen" of Shrine of Khanqah Sharif, Tehsil and District Bahawalpur died in the year 1945 but his estate could not be distributed earlier than through the impugned order dated 4.4.1995. Assistant Collector 1st Grade conducted the proceedings of mutations on 28.12.1994, 29.3.1995 and 4.4.1995 and ultimately attested the mutation in favour of Mian Faiz Muhammad after hearing both the parties. The lower Court mainly relied upon mutation No. 60, dated 6.6.1948 by which Faiz Muhammad was declared to be the sole successor of the landed property etc. Of the deceased Imam Bukhsh at Village Khanka Sharif under the Prevalent Customary Law according to the stand taken by the general-attorney of the respondents before AC-1 as the entire land at the time in Bahawalpur State was belonged to Nawab Amir of Bahawalpur. The plea taken by the appellants/petitioner claiming themselves to be entitled to inherit the property as heirs to the widow of deceased under Shariat Law was not accepted at the time of death of the deceased regarding ownership of property as a "Sajjada Nasheen" in Bahawalpur State. The petitioners filed an appeal before the AC/Collector which was dismissed on 2.4.1997. A revision was filed by the petitioners against the order of AC/Collector which was dismissed vide order of Additional Commissioner (Consolidation),' Bahawalpur Division, dated 16.10.1998, hence the present revision petition.
3. Counsel for the petitioners contended that vide mutation No. 60, dated 6.6.1948 the disputed land was transferred in favour of Faiz Muhammad to the extent of shrine of Khanka Sharif as exchange and as the Allah Wasai predecessor-in-interest of petitioners did not challenge the same as she was not present at the time of mutation No. 60 and no limitation is applicable in this case and that mutation has now been challenged and the litigation is pending in Civil Court.
4. Counsel for the petitioners further contended that even according to the customary law as provided in Punjab Laws Act (IV of 1872) Section 5 and Gazette Notification State of Bahawalpur dated 5.3.1951 Section 3 declare that the property was to be devolved and distributed according to Muslim Law, hence predecessor-in-interest of petitioners Allah Wasai was entitled to inherit property on the death of Nawab Imam Bakhsh and this point has not discussed by Additional Commissioner (Consolidation) vide his impugned order dated 16.8.1998. That the petitioners are entitled to inherit the land on the basis of their relationship with Mst. Allah Wasai deceased widow of Nawab Imam Bakhsh and respondents have no relating with Mst. Allah Wasai and they produced no proof in the lower Court. That they have challenged mutation No. 60 in Civil Court and mutation No. 485 relates to land of Mauza Pacca Lara, Tehsil Liaqatpur and that land is not included in Mutation No. 60 and has also, been mentioned in the civil suit pending in Civil Court.
That in the light of Section 172 of Land Revenue Act, Revenue Officer was bound to enter the mutation in favour of petitioner sin respect of property on the death of Mst. Allah Wasai predecessor-in-interest of petitioners and there was no need to advise the petitioners to go to Civil Court. That if the lower Court was of opinion that the matter should be agitated in Civil Court the Court should have returned the appeal to petitioners and Court was not competent to dismiss the appeal.
5. On the above grounds, it has been prayed that the impugned order is not based on correct or legal/factual grounds and based on material irregularity, may be set aside by accepting the revision petition.
6. Counsel for the respondents Nos. 1 to 3, 5 to 10 argued:-
(i) that the petitioners filed the revision petition before the Additional Commissioner (Consolidation) only against mutation No. 485 and other mutations were not challenged and order of Additional Commissioner (Consolidation) have now been assailed wherein decision was given regarding mutation No. 485 and petitioners now at this stage cannot challenge mutation other than 485 which has been entered in title of revision petition, hence revision petition is not maintainable. ..Iii) that the petitioners had already availed the remedy of revision before Additional Commissioner against which another revision petition cannot lie.
(iii) that land belonging to Khanka Sharif was transferred to "Sajjada Nasheen" Imam Bakhsh on the order of Prime Minister of Bahawalpur back in the year 1901 and on his death in 1945 some property was transferred on the order of Prime Minister to Mian Faiz Ahmad new "Sajjada Nasheen" of Khanka and on the death of Mian Faiz Ahmad property was transferred to Mian Mehmood Din new "Sajjada Nasheen" on his death the property was distributed to his legal heirs.
(iv) that all the order of law notification of Bahawalpur were adopted by Government of Pakistan and mutation No. 60 was entered on the order of Prime Minister of Bahawalpur, hence the same is legal however the same is pending in Civil Court.
(v) that predecessor-in-interest of petitioners Allah Wasai was Dad Potra by caste and she was not the widow of late Mian Imam Bakhsh whereas another Mst. Allah Wasai Kharal by caste, was widow of Mian Imam Bakhsh and the respondents derive their rights of inheritance from other Mst. Allah Wasai.
(vi) that the pedigree table to support the case of respondents was produced before lower Court to support the relationship of respondents with Mian Imam Bakhsh.
(vii) that the mutation No. 60, dated 6.6.1948 has been challenged by petitioners in Civil Court and that mutation was entered in favour of Mian Imam Bakhsh on the basis of order of Prime Minister of Bahawalpur in respect of property of Khanka Sharif was also transferred on the basis of those orders.
(viii) that Mian Imam Bakhsh died no 13.6.1945 and Mst. Allah Wasai the predecessor-in-interest of petitioners remained alive and died on 23.12.1979 and she never challenged mutation No. 60 in any Curt likewise the petitioners the successors-in-interest of Mst. Allah Wasai filed civil suit in the year 1994-95 and did not challenge any of mutation before Civil Court.
(ix) that petition for status quo filed by petitioners in Civil Court was declined and appeal was filed before District Judge where also the request was not accepted and they filed writ petition before High Court which was dismissed. The petitioners if they h-ad any right could have obtained relief from Civil Court.
(x) that on the death of Mian Imam Bakhsh, that according to notification Customary Law was applicable and remained applicable in the Bahawalpur District upto 4.3.1951 when it was changed and Shariat Law became applicable vide Notification No. 24, dated 5.3.1951; hence petitioners were not entitled to share of property as contended by the petitioners and Mst. Allah Wasai the predecessor-in-interest of respondents got her legal share according to .Family settlement and the same family settlement has also been challenged by petitioners in Civil Court.
(xi) that it was not the suit filed by petitioners before the Additional Commissioner which the petitioners claim should have returned to them with the advice to approach the Civil Court but it was appeal against mutation No. 485; hence impugned order is legal.
7. M, Kareem Joyia, Advocate/counsel for applicants/respondents Nos. 6, 8 and 10 argued that respondents Nos. 6, 8 and 10 did not admit that Mst. Allah Wasai predecessor-in-interest of petitioners as the widow of late Mian Imam Bakhsh and that this involves complicated questions which require to be proved or disproved, hence the lower Court rightly advised the petitioners to go to Civil Court. That the petitioners have themselves agitated the issue of inheritance in Civil Court in which they contend that the petitioners are heirs of Mst. Allah Wasai and the issue cannot be decided by Revenue Court and this is the main issue of inheritance involved in revision petition before the Additional Commissioner and the decision of Civil Court will be binding on all the parties.
The counsel has also argued that Mukhtar Ahmad and others have got a decree from Civil Court regarding property in dispute (mutation No. 485) and new mutation to that effect has also been entered on the basis of decree of Civil Court and that mutations have also been entered in Register Haqdaran Zamin and that decree was passed* in 1990 and was not agitated by any party in Civil Court.
8. Mian Mehboob Ahmad, Advocate/counsel for respondents Nos. 1, 2, 3, 5 to 10 has also argued that on the basis of Mutation No. 60 the names of Mian Imam Bakhsh has been appearing in the long standing entries and has been further changed according to the mutations entered afterwards.
9. Counsel for the petitioners replied in rebuttal that decree of Civil Court in favour of Mukhtar Ahmad and others does not debar this Court for setting aside Mutation No. 485. He relied upon 2002 SCM R 1507. Counsel has further argued that no law has been produced regarding the order of Prime Minister of Bahawalpur for transfer of property of Khanka Sharif. That Mst. Allah Wasai predecessor-in-interest was admittedly alive upto year 1979 and she was illiterate lady and challenged the impugned mutation when she came to know that fact.
10. Heard. Record perused. The petitioners have assailed the orders of Additional Commissioner (Consolidation), Bahawalpur dated 16.10.1998 and the pray has been for acceptance of revision petition and cancellation of orders dated 16.10.1998, 2.4.1997 and 4.4.1995 whereby mutations Nos.
485, 487, 488 were entered/approved and Mutations Nos. 545, 546, 547, 549 and 550 regarding property in Mauza Pacca Lara, Tehsil Liaqatpur District Rahim Yar Khan were dismissed. The order of Additional Commissioner dated 16.10.1998 pertain only to mutation No. 485 and the objection of the counsel for the respondents taken against the petitioners has not been properly replied by counsel for the petitioners. This makes this revision petition defective to that extent. Although this is a technical objection and should not be made a new ground for deciding the revision petition especially when the arguments by counsel for petitioners are directed mainly to the impugned order of Additional Commissioner regarding mutation No. 485 of Mauza Pacca Lara.
11, The contentions raised by counsel for the petitioners are almost the same as were agitated before the lower Courts. The same were discussed and examined. The Additional Commissioner vide impugned order dismissed revision petition of petitioners as upheld the order of AC/Collector, Sub-Division, Liaqatpur dated 2.4.1997. It has been observed by AC/Collector that contents of mutation No. 60, dated 6.6.1948 shows that property held by Imam Bukhsh deceased as a "Sajjada ' Nashin" was mutated in favour of Faiz Muhammad, It is, therefore, abundantly clear that mutation was sanctioned in favour of Faiz Muhammad in the year 1948 under Customary Law. The impugned order was passed quite in accordance with law and no exception can be taken in that behalf. Moreover, allegations of fraud1 have been levelled in respect of the transaction and the Civil Court is the only forum where question of fraud can be gone into and adjudicated. Besides, complicated questions of law and facts are involved in the instant case. Such intricate questions can only be sifted and sorted out by Civil Court and the Revenue Officer-is authorized only to decide the issue in a summary way.
12. The petitioners at this stage have not agitated the issue of fraud before this Court. However, the mutation No. 60, dated 6.6.1948 has been challenged in Civil Court and the same is sub judice there. Even if the petitioners contend that the issue of mutation No. 485 is not connected with mutation No. 60, but vires of the mutation No. 60 are connected with the mutation No. 485 and the both cannot be decided separately. The property involved in both these mutations belongs to the same "Sajjada Nashin" Imam Bakhsh and the decisions if any from the Revenue Court on vires of Mutation No. 485 will effect the case pending in the Civil Court.
13. The findings of the lower Courts to the effect that complicated questions of fact are involved in this case appears to be correct and based on cogent reasons. Not only the relationship of present petitioners with the "Sajjada Nashin" is still to have been proved and the material/proof with the petitioner at this stage is not apparent enough to decide the same. A third party Mukhtar Ahmad and others who were impleaded in these proceedings have got a decree from the Civil Court in their favour regarding the property involved in mutation No. 485. This decree has not been challenged in any Court and on the basis of this decree the revenue officer had already made entries in the revenue record. This has already made the issue involved in the present revision petition more complicated and taken the case out of the parameters of summary proceedings prescribed for entry and attestation of mutations.
14. In view of above, the concurrent findings of lower Courts do not deserve to be interfered with and as the main issue involved in the present revision petition is sub judice in the Civil Court. The lower Courts have committed no wrong leaving the case to be decided by Civil Court. The revision petition is dismissed being devoid of force.