2012 M L D 1907
[Balochistan]
Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J
SALEH MUHAMMAD and 4 others ---Petitioners
Versus
BAZ MUHAMMAD and 2 others ---Respondents
Constitutional Petition No.83 of 2009, decided on 16th August, 2012.
(a) West Pakistan Land Revenue Act (XVII of 19 67)---
----S.42---Mutation, entries in ---Evidentiary value ---Such entries for being meant only for
fiscal purposes would not be equivalent to title.
Muhammad Iqbal v. S.A.M. Khan PLD 1970 Lah. 614 ref.
(b) West Pakistan Land Revenue Act (XVII of 196 7)---
----Ss.44, 53, 161, 164 & 172 ---Registration Act (XVI of 1908), S.60 ---Specific Relief Act (I
of 1877), Ss. 39 & 42 ---Qanun -e-Shahadat (10 of 1984), Art. 100 ---Civil Procedure Code (V
of 1908), S.9 ---Constitution of Pakistan, Art. 199 ---Constitutio nal jurisdiction ---Scope ---
Mutation attested on basis of registered power of attorney ---Owner seeking cancellation of
suit mutation and subsequent mutations/sale deeds made on its basis alleging such power of
attorney to be forged after thirty years of its execution and eighteen years of death of
attorney ---Powers of Executive District Officer (Revenue) and Land Commissioner to grant
such relief to owner ---Scope ---Presumption of validity was attached to such power of
attorney for being thirty years old ---Suit mutation and subsequent mutations/sale -deeds made
on its basis could be cancelled or declared as void only by competent civil court, whereas
Land Commissioner had no jurisdiction to undo such documents ---Assumption of jurisdiction
by Land Commissioner a nd cancellation of suit mutation would be a major error ---
Constitutional jurisdiction of High Court could be invoked to correct such illegality ---
Principles.
Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Haliman Bibi v. Muhammad Bashir
1989 CLC 1588; Muhammad Razaq v. Shamim Akhtar 2006 CLC 697; Anjum Mehmood v.
Rizwan Ahmed 2006 CLC 876; Amir Bibi v. Atta Muhammad Khan 1992 SCMR 553; Abdul
Qadir v. Allah Wasaya 1997 CLC 311; Atta Muhammad v. Nasir -ud-Din PLD 1993 Pesh.
127; Abdul Sattar Khan v. Rafiq Khan 2000 SCMR 1574; Muhammad Younus Khan v.
Government of N.W.F.P 1993 SCMR 618; General Manager, Pearl Continental v. Farhad
Iqbal PLD 2003 SC 952; Muhammad Faraz v. Abdul Rashid Khan 1984 SCMR 724;
Muzamil Khan v. Consolidation Officer PLD 2005 Lah. 42 2; Imran Shafique v. Zulfiqar
Ahmed 2007 MLD 192; Talat Jahan Burki v. Member, Board of Revenue 2005 CLC 269;
Journalist Publication (Pvt.) Ltd v. Mumtaz Begum 2004 SCMR 1774; Jamil Akhtar v. Las
Baba PLD 2003 SC 494; Muhammad Fazal v. Khadim Hussain 1998 MLD 1658; Abdul
Ghani v. Shaheen 2007 SCMR 834; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC
104; Atta Muhammad v. Allah Wasaya 2004 CLC 1665 and Mohd. Iqbal v. S.A.M. Khan
PLD 1970 Lah. 614 ref.
Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78; Hakim Khan v. Nazeer Ahmad
Lughmani 1992 SCMR 1832; Administrator -General Punjab v. M. Stanley Charles William
PLD 1986 Lah. 333 and Noorwar Jan v. Senior Member Board of Revenue N. -W.F.P. PLD
1991 SC 531 ref.
(c) West Pakistan Land Revenue Act (XVII of 1967) ---
----S.42---Void mutation ---Limitation ---No limitation period would come in way of such
mutation.
(d) Constitution of Pakistan ---
----Art.199 ---Constitutional jurisdiction of High Court ---Scope ---High Court could not
determine disputed questions of fact in Constitutional jurisdiction.
(e) Constitution of Pakistan ---
----Art.199 ---Constitutional jurisdiction of High Court ---Scope ---Such jurisdiction could be
invoked to correct an illegality ---Illustration.
Noorwar Jan v. Senior Member, Boar d of Revenue N. -W.F.P. PLD 1991 SC 531 ref.
Muhammad Riaz Ahmed for Petitioners.
Abdul Aziz Khan Khilji, Additional Advocate General for official respondents, Chaudhary
Arshad, Advocate for respondent No.1 and Sardar Ahmed Haleemi for Respondents Nos. 2, 3
15 and 16.
Date of hearing: 1st, August, 2012.
JUDGMENT
QAZI FAEZ ISA, C.J. ---The origin of this matter lies in the application submitted by Baz
Muhammad (respondent No.1) on November 10, 2007 before the Executive District Officer
("EDO") (Reve nue) Quetta (respondent No.17) alleging that he had not executed the power
of attorney dated March 28, 1977 ("the power of attorney") in favour of his father, namely the
late Ghulam Nabi. The power of attorney was in respect of two properties respectively
bearing Khewet No.85, Khatooni No.117, Survey No.4276 admeasuring 2,084 square feet
("the first property") and Khewet No.95, Khatooni No.123, Survey No.7969/4277
admeasuring 620 square feet ("the second property"). The late Ghulam Nabi died in the year
1989, leaving behind eight sons. Three of the sons were from his first wife and five sons from
his second wife. The power of attorney was jointly executed by Baz Muhammad and Lal
Muhammad (respondent No.2), the real brother of Baz Muhammad, both being sons fr om the
first wife. The remaining son from the first wife is Abdul Bari (respondent No.3).
2. The said Ghulam Nabi on the basis of the power of attorney executed the following
mutations in respect of the two properties:
Mutation No. Date In respect of
1080 24-1-1978 the first property
1057 23-1-1978 the second property
Baz Muhammad denied executing the power of attorney and challenged his father's power to
execute mutation in respect of the first property. He however did not challen ge the use of the
same power of attorney in respect of effecting mutation in respect of the second property. The
abovementioned application submitted to EDO (Revenue) (hereinafter "the Application") was
not on the record, therefore, it was permitted to be produced by consent of all the learned
counsel. The Application reads as under: --
The application called upon the EDO (Revenue) to conduct an enquiry regarding the power
of attorney, whilst Baz Muhammad reserved his right to institute civil and criminal cases.
3. The EDO (Revenue) upon receipt of the application from Baz Muhammad called for
report from the Sub -Registrar, District Quetta as to whether the power of attorney had been
registered with him. The Sub -Registrar confirmed that the power of attorn ey had been
registered by the Sub -Registrar Quetta on March 29, 1977. Therefore, EDO (Revenue) vide
order dated November 22, 2007 dismissed the Application of Baz Muhammad, who then
filed 'appeal' under section 161 of the Balochistan Land Revenue Act, 1967 (hereinafter "the
Act") before the EDO (Revenue), but the same was dismissed on May 3, 2008. In view of the
fact that copy of the said appeal had not been filed we permitted Mr. Muhammad Arshad
Chaudhary, the learned counsel for Baz Muhammad, to place the same on record by consent.
Admittedly, in the appeal the EDO's earlier order dated November 22, 2007 was neither
mentioned nor assailed. Thereafter, a review application under section 163 of the Act, was
filed before EDO (Revenue) seeking review of his or der dated May 3, 2008, which too was
dismissed vide order dated July 14, 2008.
4. That against orders dated May 3, 2008 and July 14, 2008 Baz Muhammad submitted
an appeal before the Land Commissioner (respondent No.18) under section 161 of the Act,
which was allowed vide order dated November 26, 2008 and the power of attorney was
declared void and the aforesaid mutation entries and all other subsequent mutation entries
were set aside. The petitioners being aggrieved by the order of the Land Commissioner f iled
revision under section 164 of the Act before the Member -II, Board of Revenue (respondent
No.18), who dismissed the same vide order dated January 23, 2009. The petitioners have
impugned the orders of the Land Commissioner dated November 26, 2008 and th e order of
Member -II, Board of Revenue dated January 23, 2009 in this petition.
5. It is the case of petitioners that the power of attorney was executed by two brothers,
namely Baz Muhammad and Lal Muhammad, in favour of their father the late Ghulam Nabi .
Mr. Muhammad Riaz Ahmed and Sardar Ahmed Haleemi Advocates, respectively
representing the petitioners and respondent No.2 contended that:
(1) Lal Muhammad, who is the real elder brother of Baz Muhammad, admits the
execution of the power of attorney;
(2) Lal Muhammad was not arrayed before the EDO (Revenue) by Baz
Muhammad;
(3) The power of attorney was a registered document and as such presumption of
authenticity attached thereto;
(4) The land revenue authorities did not have jurisdiction to order cancellation of
a registered power of attorney under section 172 of the Act;
(5) The jurisdiction with regard to cancellation of a registered power of attorney
exclusively vested in the civil court under section 39 of the Specific Relief Act, 1877;
(6) The application was submitted by Baz Muhammad after a period of thirty
years from the date of execution and registration of power of attorney, and about
eighteen years after Mr. Ghulam Nabi's death;
(7) The order dated November 22, 2007 of the EDO (Rev enue) whereby he
dismissed Baz Muhammad's Application has not been assailed till date and the same
has attained finality;
(8) The Sub -Registrar Quetta submitted his report dated November 10, 2007
regarding the power of attorney, which confirmed that the power of attorney had been
registered, and relying on the said report the EDO (Revenue) had dismissed the
application of Baz Muhammad, which fact was overlooked by the Land
Commissioner and Member -II, Board of Revenue;
(9) Baz Muhammad accepted the mutat ion made in respect of the second property
as he benefited there from, despite the fact that the same power of attorney was used
to effect it; and
(10) That Baz Muhammad by his conduct was estopped under section 114 of
the Qanun -e-Shahadat Order 1984 from challenging the registered power of attorney,
other registered documents and mutations.
6. The learned counsel for the petitioners and respondent No.2 further stated that even if
the above mentioned mutation No.1080, effected pursuant to the p ower of attorney, is
disregarded it would not make a difference because of the subsequent family settlements
(khangi taqseem) entered into between the father and the brothers vide mutation Nos.22 and
23. In this regard in respect of the first property muta tion No.22 was made on January 29,
1983. At the time the mutation was effected in respect of the first property measurement of
the land was taken and it transpired that it was 2,135 square feet, and not 2,084 square feet as
earlier recorded. In respect of the second property mutation No.23 was also made on January
29, 1983. At the time the mutation was effected in respect of the second property
measurement of the land was taken and it transpired that it was 610 square feet, and not 620
square feet as earlie r recorded. Subsequently, on March 6, 1986 the oral family settlement as
noted in the said mutations was confirmed through a written document, which was registered
on August 8, 1986 by the Sub -Registrar Quetta. Reference was also made to the 'Declaration
of Oral Gift' dated January 30, 1986, registered on March 6, 1986 by the Sub -Registrar
Quetta, which confirmed the gift referred to in the mutations. Learned counsel stated that
none of these documents, to which Baz Muhammad himself was a signatory, were ch allenged
and their effect would not be undone merely by assailing the earlier mutation.
7. It was next contended that third party rights have been created in persons (petitioner
No.6, respondents Nos. 13, 14, 15 and 16) who purchased different portions f rom the
property in the years 1994, 1996 and 2007. In this regard our attention was drawn to (1) Sale
Deed dated January 17, 1996 registered on February 13, 1996, (2) Sale Deed dated March 11,
1996 registered on March 20, 1996, (3) Sale Deed dated November 1, 2007 registered on
November 1, 2007, (4) Sale Deed dated November 1, 2007 registered on November 3, 2007,
(5) Sale Deed dated November 1, 2007 registered on November 3, 2007 and (6) Sale Deed
dated November 1, 2007 registered on November 3, 2007.
8. Learned counsel said that the Land Commissioner brushed aside the above mentioned
mutations and registered documents cursorily in the following terms: --
"During the arguments, the counsel of respondents produced Khangi Taqseem
agreement and Declaration G ift Deed 1986, both documents challenged by the
petitioner (respondent No.1 herein) and contended that both are forge one. A copy of
N.I.C. of petitioner is also intact along with record and examined, the signature of the
petitioner on both documents are v arying from the signature of National Identity
Card. I also examined the signature on the appeal, Vakalat Nama and other
applications, the signature on the above said documents are the similar one of N.I.C.
but signature on Khangi Taqseem and Declaration G ift Deed are the different, the
same has rather have been manipulated and seems as forged one."
Learned counsel stated that the above findings were given in respect of official records
(mutations) and registered documents and without giving notice to the parties who would be
effected by such a decision.
9. That Mr. Riaz Ahmed and Sardar Ahmed Haleemi, Advocates cited the following
precedents in respect of the propositions, that, the revenue authorities acted beyond the
prescribed limitation period, the revenue authorities had no jurisdiction, the Land
Commissioner could not cancel a registered power of attorney and other registered
documents and if anyone wanted to challenge a registered document he should have done so
by filing a suit in a civil court h aving jurisdiction:
Rehman Khan v. Asadullah Khan, PLD 1983 Quetta 52
Haliman Bibi v. Muhammad Bashir, 1989 CLC 1588
Muhammad Razaq v. Shamim Akhtar, 2006 CLC 697
Anjum Mehmood v. Rizwan Ahmed, 2006 CLC 876
Amir Bibi v. Atta Muhammad Khan, 199 2 SCMR 553
Abdul Qadir v. Allah Wasaya, 1997 CLC 311
Atta Muhammad v. Nasir -ud-Din, PLD 1993 Peshawar 127
Abdul Sattar Khan v. Rafiq Khan, 2000 SCMR 1574
10. That Mr. Muhammad Arshad Chaudhry, Advocate opposed the petition on behalf of
Baz Muhamm ad. He sought to explain that Baz Muhammad did not assail the order of the
EDO (Revenue) dated November 22, 2007 as he was not aggrieved thereby, because the
power of attorney holder (the late Ghulam Nabi) was dead and that upon his death the power
of atto rney came to an end. He next contended that the attorney had exceeded the powers
given to him in the power of attorney and had made a false statement before the revenue
authorities, that his sons Khair Muhammad and Dost Muhammad had died and the reby
usurped their shares. Learned counsel stated a wrong mutation (made pursuant to the power
of attorney) gave a separate cause of action to Baz Muhammad, who availed of his
remedy by filing an appeal under section 161 of the Act (which was tre ated as a revision
under section 164) before the Land Commissioner, who allowed the same. And that the
revision filed by the petitioners before the Member -II, Board of Revenue was not
maintainable being a second revision, and that in any event the same was dismissed.
11. Reliance was placed by Mr. Chaudhry on the following precedents with regard to the
propositions, that, there were concurrent findings of two authorities therefore the petition
before the High Court was not maintainable and that, factual c ontroversies could not be
determined by the High Court: --
Muhammad Younus Khan v. Government of N.W.F.P, 1993 SCMR 618
General Manager, Pearl Continental v. Farhad Iqbal, PLD 2003 SC 952
Muhammad Faraz v. Abdul Rashid Khan, 1984 SCMR 724
Muzamil Khan v. Consolidation Officer, PLD 2005 Lahore 422
Imran Shafique v. Zulfiqar Ahmed, 2007 MLD 192
Learned counsel also urged that a power of attorney must be strictly construed and in
this regard cited the following cases:
Talat Jahan Burki v. Membe r Board of Revenue, 2005 CLC 269
Journalist Publication (Pvt.) Ltd v. Mumtaz Begum, 2004 SCMR 1774
Jamil Akhtar v. Las Baba, PLD 2003 SC 494
Muhammad Fazal v. Khadim Hussain, 1998 MLD 1658
To meet the objection with regard to the point of limitat ion Mr. Chaudhry stated that if the
basic order is void limitation does not come in the way, and relied upon the case of Abdul
Ghani v. Shaheen, 2007 SCMR 834, and Yousaf Ali v. Muhammad Aslam Zia, PLD 1958
SC 104. He further stated that mutation entries are not equivalent to title documents and are
meant for fiscal purposes only and cited the cases of Atta Muhammad v. Allah Wasaya, 2004
CLC 1665 and Mohd. Iqbal v. S.A.M. Khan, PLD 1970 Lah. 614.
12. Mr. Abdul Aziz Khilji, learned Additional Advocate Ge neral appearing for the
official respondents did not support the impugned orders and stated that the power of attorney
was a thirty years old registered document and its cancellation could only be done by a civil
court and after recording of evidence.
13. That with the assistance of learned counsel we examined the referred to documents
and the precedents cited by them. Admittedly the dispute arose when Baz Muhammad
submitted the Application before the EDO (Revenue) assailing the power of attorney. The
Sub-Registrar confirmed in his report that the power of attorney had been registered and the
EDO (Revenue), relying upon the report of the Sub -Registrar, vide order dated November 22,
2007 dismissed the Application of Baz Muhammad. He then filed appeal which was
dismissed by the EDO (Revenue) vide order dated May 3, 2008. The review application
seeking review of order dated May 3, 2008 was also dismissed vide order dated July 14,
2008. Admittedly, Baz Muhammad did not assail the order dated November 22, 2007 p assed
by EDO (Revenue), but only his two subsequent orders, respectively dated May 3, 2008 and
July 14, 2008.
14. The powers exercised by civil courts under the Specific Relief Act, 1877 and those
exercised by the revenue authorities under the Balochista n Land Revenue Act, 1967 need
examination to determine the respective jurisdiction of the courts and revenue authorities.
Specific Relief Act, 1877:
Section 39. When cancellation may be ordered. Any person against whom a written
instrument is void or voidable, who has reasonable apprehension that such instrument,
if left outstanding, may cause him serious injury, may sue to have it adjudged void or
voidable; and the Court may, in its discretion, so adjudge it to be delivered up and
cancelled.
If the instrument has been registered under the Registration Act, the Court shall also
send a copy of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument contained in his
books the fact of its cancellation.
Section 42. Discretion of Court as to declaration of status or right. Any person entitled
to any legal character or to right as to any property, may institute a suit against any
person denying, or interested to deny, his ti tle to such character or right and the Court
may in its discretion make therein a declaration that he is so entitled, and the plaintiff
need not in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall make any such declaration where
the plaintiff being able to seek further relief than mere declaration of title omits to do
so.
Balochistan Land Revenue Act, 1967:
Section 44 . Determination of disputes (1) If during the making, revision or
preparation of any record , or in the course of any inquiry under this Chapter a dispute
arise as to any matter of which an entry is to be made in a record or in a register of
mutations, a Revenue Officer may of his own motion, or on the application of any
party interested, but sub ject to the provisions of section 45, and after such inquiry as
he thinks fit, determine the entry to be made as to that matter and record his reasons
thereof.
(2) If in any such dispute, the Revenue Officer is unable to satisfy himself as to
which of th e parties thereto is in possession of any property to which the dispute
relates, he shall ---
(a) If he be not below the rank of Assistant Collector of the first grade, ascertain,
after an inquiry in which an opportunity shall be given to all the parties to the dispute
of being heard and adducing evidence in support of their claims, who is the person
best entitled to the property, and shall by written order direct that the person be put in
possession thereof and that entry in accordance with that order be made in the record
or register; and
(b) If he be below the rank of Assistant Collector of the first grade, report the
matter to the Assistant Collector of the first grade, who shall thereupon proceed in the
manner provided in clause (a).
(3) A directio n under subsection (2) shall be subject to any decree or order which
may be subsequently passed by any Court of competent jurisdiction.
Section 53. Suit for declaratory decrees by persons aggrieved by an entry in a record.
If any person considers himself aggrieved by an entry in a record -of-rights or in a
periodical record as to any right of which he is in possession, he may institute a suit
for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act 1
of 1877).
Section 172. Ex clusion of jurisdiction of Civil Courts in matters within the
jurisdiction of Revenue Officers. (1) Except as otherwise provided by this Act, no
civil Court shall have jurisdiction in any matter which Government, the Board of
Revenue, or any Revenue Office r, is empowered by this Act to dispose of or take
cognizance of the manner in which Government, the Board of Revenue, or any
Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the pro visions of subsection (1), a Civil
Court shall not exercise jurisdiction over any of the following matters namely:
(i) any question as to the limits of any land which has been defined by a Revenue
Officer as land to which this Act does or does not apply;
(ii) any claim to compel the discharge of any duties imposed by this Act or any
other enactment for the time being in force on any Revenue Officer as such;
(iii) any claim to the office of a Village Officer, or in respect of any injury caused
by exclu sion front such office, or to compel the discharge of the duties or a division of
the emoluments thereof;
(iv) any notification directing the making or revision of a record -of-rights;
(v) the framing of a record -of-rights or periodical record, or the p reparation,
signing or attestation of any of the documents included in such a record;
(vi) the correction of any entry in a record -of-rights, periodical record or register
of mutations;
(vii) any notification of the undertaking of the general reassessm ent of a District or
Tehsil having been sanctioned by Governments;
(viii) any objection to the amount or rate of any assessment of land -revenue or the
period thereof authorized by Government;
(ix) the claim of any person to be liable for an assessment of land revenue or of
any other revenue as assessed under this Act;
(x) the amount of land revenue to be assessed on any estate or to be paid in
respect of any holding under this Act;
(xi) the amount of/or the liability of any person to pay, any other revenue to be
assessed under this Act, or any cess, charge or rate to be assessed on an estate or
holding under this Act or any other enactment for the time being in force;
(xii) any claim relating to the allowance to be received by a land -owner who has
given notice of his refusal to be liable for an assessment, or any claim connected with,
or arising out of any proceedings taken in consequence of the refusal of any person to
be liable for an assessment under this Act;
(xiii) the formation of an estate or determination of its boundaries;
(xiv) any claim to hold free of revenue any land, mills fisheries or natural products of
land or water;
(xv) any claim connected with, or arising out of the collection by Government, or the
enforcement by Government of any process for the recovery of land -revenue or any
sum recoverable as an arrear of land revenue;
(xvi) any claim to set aside, on any ground other than fraud, a sale for the recovery of
an arrear of land revenue or any sum recoverable as an arrear of land revenue;
(xvii) the amount of or the liability of any person to pay, any cess, fees, fines, costs or
other charge imposed under this Act;
(xviii) any claim for partition of an estate or holding, or any question connected with
or arising out of pr oceedings for partition, not being a question as to title in any of the
property of which partition is sought;
(xix) any question as to the allotment of land on the partition of an estate or holding,
or as to the distribution of land subject by establish ed custom to periodical re -
distribution or as to the distribution of land -revenue on the partition of an estate or
holding or on a periodical re distribution of land;
(xx) any question connected with or arising out of or relating to any proceedings for
the determination of boundaries of estates subject to river action under the provision
of this Act;
(xxi) any claim regarding boundaries fixed under any of the enactments hereby
repealed or any other law for the time being in force, or to set aside any or der passed
by a competent officer under any such law with regard to boundary marks."
15. That the aforesaid provisions clearly set out the respective jurisdiction of the civil
courts and revenue authorities. In the case of Rasta Mal Khan v. Nabi Sarwar K han, 1996
SCMR 78, the Hon'ble Supreme Court examined sections 172 and 53 of the (West Pakistan)
Land Revenue Act, 1967 and section 42 of the Specific Relief Act, 1877 and concluded that
the jurisdiction of the civil courts under section 172 of the said Ac t is excluded in respect of
correction of entries made by revenue officers. However, if such entries interfered with the
rights of parties the remedy lay before the civil courts as provided by section 53 of the said
Act or under section 42 of the Specific Relief Act. It would be useful to reproduce paragraph
10 from the said judgment (appearing at page 83), as under: --
"Regarding bar of jurisdiction of the Civil Court under section 172, subsection
(2), clause VI of the West Pakistan Land Revenue Act, 1967 it may be pointed out
that exclusion of jurisdiction of Civil Court relates to the correction of the entries
made by the Revenue Officer in performance of his duty without touching the right of
the persons in the land, but whenever such entries i nterferes with the rights of a
person in the land record in the Record of Rights, and such person feels aggrieved, for
correction of such entries he has to approach Civil Court for declaration under section
53 of the Act or in other words under section 42 of the Specific Relief Act both the
relief available being of the same nature and identical. The dispute herein pertained to
the nature of the transactions in the suits for pre -emption based on the impugned
mutation. The suits were therefore rightly held t riable by the Civil Court."
In the case of Hakim Khan v. Nazeer Ahmad Lughmani, 1992 SCMR 1832, the Hon'ble
Supreme Court inter alia held that:
"Under section 53 thereof [Land Revenue Act, 1967] if any person considers himself
aggrieved by an entry in a record -of-rights, he has to institute a suit for declaration.
As such Musa Khan plaintiff ought to have filed a suit for declaration within the
statutory period, for disputing the genuineness of the transaction or collusion and
fraud in the attestation of the mutation."
16. Mr.Chaudhry learned counsel is correct in stating that mutation entries are not
equivalent to title and are meant for fiscal purposes only. However, the mutation entry
No.1080 in respect of the first property that was assailed was m ade by invoking the power of
attorney. Notably Baz Muhammad did not challenge mutation entry No.1057 in respect of the
second property, which was also made by invoking the same power of attorney. The power of
attorney was registered with the Sub -Registrar Quetta and there is a presumption of validity
in respect of registered documents. In the case of Administrator -General Punjab v. M.
Stanley Charles William, PLD 1986 Lahore 333, Mr. Justice Khalil -ur-Rehman Khan (as he
then was) held (at page 343) that: --
"As regards the non production of the Powers -of-Attorney and the consequential
arguments urged, it is to be noted that under section 60 of the Registration Act, 1908
presumption that the document was duly registered in the manner provided by the Act
and that the facts mentioned in the endorsement referred to in section 59 had occurred
as mentioned therein arises and consequently unless this presumption is rebutted the
fact that the Attorney had acted under a proper Power -of-Attorney has to be
presumed."
17. That Baz Muhammad's real brother, Lal Muhammad, who had jointly executed the
power of attorney, acknowledged execution thereof. The power of attorney was dated March
28, 1977 and registered by the Sub -Registrar Quetta on March 29, 1977 and it was ass ailed
for the very first time when Baz Muhammad submitted the Application dated November 10,
2007 before the Executive District Officer (EDO) Revenue Quetta; that is after thirty years
from the date of its execution. In respect of thirty years old document s Article 100 of the
Qanun -e-Shahadat, 1984 presumes, "that the signature and every part of such document,
which purports to be in the handwriting of any particular person is in that person's
handwriting, and, in the case of a document executed or atteste d, that it was duly executed
and attested by the persons by whom it purports to be executed and attested." The fact that
the power of attorney was not disputed in the lifetime of the late Ghulam Nabi, in whose
favour it was executed, is also significant.
18. The EDO (Revenue) vide his order dated November 22, 2007, passed on the
Application submitted by Baz Muhammad, held that the power of attorney was found to be
registered in the Sub -Registrar's record, was a thirty years old and the late Ghulam Nabi, i n
whose favour it was executed, was dead, therefore the applicant may approach the civil court
for his grievances to be redressed. Baz Muhammad rather than approaching a civil court
preferred an appeal under section 161 of the Act before the EDO (Revenue), who vide order
dated May 3, 2008 reiterated his earlier findings and concluded, that rather than approaching
the civil courts the appellant has, after a lapse of five months, preferred appeal, which is not
maintainable. Thereafter, Baz Muhammad filed an a pplication for review under section 163
of the Act before the EDO (Revenue), who vide order dated July 14, 2008 reiterated his
earlier findings and held, that, the impugned power of attorney was over thirty years old, that
it cannot be cancelled without le ading evidence and that long standing revenue entries cannot
be cancelled by the revenue authorities, and declined to review his earlier orders. We do not
find any illegality or impropriety in any of the three orders of the EDO (Revenue) and are
also of th e view that if at all Baz Muhammad had any grievance he should have approached a
competent court of civil jurisdiction.
19. The Land Commissioner however was of a different view, and the Member -II, Board
of Revenue upheld the same. The Land Commissioner made much of the fact that the original
of the power of attorney was not produced by the respondents (petitioners herein) without
appreciating that the same was executed in favour of Ghulam Nabi, who was dead for
eighteen years. In any event for him to ins ist that the respondents were required to produce
the power of attorney, despite the fact it was not executed in their favour, was not based on
any legal principle. The Land Commissioner also disregarded the family settlements, to
which Baz Muhammad was a signatory, and the registered documents subsequently executed
on the basis thereof. He also took it upon himself to compare Baz Muhammad's signatures on
the registered documents and mutation record with his signature on the appeal and
vakalatnama, but fail ed to appreciate that a party could sign differently merely to make a
case. Such examination can only be made and findings given by a civil court after recording
of evidence and after giving the other side an opportunity to rebut the allegations and
provid ing him with an opportunity to cross -examine.
20. The learned counsel for Baz Muhammad, before the Land Commissioner, the Senior
Member, Board of Revenue and before us, made much of the fact that the late Ghulam Nabi
had falsely stated that two of his so ns Khair Muhammad and Dost Muhammad had died and
thereby usurped their shares. However, such usurpation did not adversely impact Baz
Muhammad's rights. Khair Muhammad and Dost Muhammad, who are petitioners herein, did
not take any action and were represent ed before the Land Commissioner and the Member -II,
Board of Revenue, but did not support Baz Muhammad. Probably Khair Muhammad's and
Dost Muhammad's grievances stood resolved when the family settlements were made,
however, this is not something for us to r esolve herein. What we can observe is that if Khair
Muhammad and Dost Muhammad had any grievance they would have taken steps to resolve
the same. However, significantly they have not attributed any wrongdoing to their late father
nor agitated about, what M r. Chaudhry has described as, their usurped rights.
21. Mr. Chaudhry Advocate correctly stated that no limitation period comes in the way of
a void mutation entry, however, what he categorized as a void mutation entry was based upon
a registered power of attorney, which only a competent court of civil jurisdiction could cancel
or declare as void. There is also no cavil with his contention that mutation entries are not
equivalent to title document and the same are meant for fiscal purposes. Mohd. Iqbal v.
S.A.M. Khan PLD 1970 Lahore 614, the case cited by him, however, does not advance his
cause, because in that case a divisional bench of the Lahore High Court held, that: --
"The Revenue Authorities, moreover, in proceedings for sanctioning mutation do not act as
arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as
to the title of the parties. They sanction mutations to keep their record in order and up -to-date.
In Nirman Singh v. Rudra Partap Narain Singh (2), i t was held by the Judicial Committee that
mutation proceedings are not judicial proceedings in which title to and proprietary rights in
immovable property are determined but that "they are much more of the nature of fiscal
enquiries instituted in the inter est of the State for the purpose of ascertaining which of the
several claimants for the occupation of certain denominations of immovable property may be
put into occupation of it with greater confidence that the revenue for it will be paid" A person
advers ely affected by such an entry can, notwithstanding the mutation, maintain that he is
vested with the right and have his right declared in a civil suit."
22. There can also be no cavil with Mr. Chaudhry's contention that disputed questions of
fact cannot be determined by the High Court in its constitutional jurisdiction, however, there
are no disputed questions that we are determining. Messrs Riaz Ahmed and Ahmed Haleemi,
Advocates, have placed reliance upon the orders of the EDO (Revenue) and stated that if Baz
Muhammad wanted to assail the thirty years old registered power of attorney and mutation
entries made on its basis, the family settlements and the registered document executed
pursuant thereto or the sale deeds the same could only have been done by invoking the
jurisdiction of the civil court and that the Land Commissioner did not have jurisdiction to
undo all these documents purportedly exercising powers under the Balochistan Land Revenue
Act, 1967.
23. Mr. Chaudhry was however wrong in stating t hat there were two concurrent findings
in favour of Baz Muhammad. None of the three orders of the EDO (Revenue) record any
finding in favour of Baz Muhammad, and the EDO's first order dated November 22, 2007
still holds the field as the same was not assai led, let alone set aside. The Land Commissioner,
in the facts and circumstances of the case, could not assume the jurisdiction which vested
entirely in the civil courts in respect of thirty years old registered power of attorney and
mutation entries made o n its basis, the family settlements and the registered document
executed pursuant thereto and sale deeds executed with third parties. He also failed to
appreciate that in assuming jurisdiction and restoring "the original entry Mutation No.1080"
and subsequ ent mutations he had struck down cancelled the sale deeds entered into with third
parties, without notice to them.
24. The power of attorney was found to be registered in the record of the Sub -Registrar,
Quetta, therefore, if aggrieved Baz Muhammad shoul d have approached a civil court having
jurisdiction seeking requisite declaration and cancellation of the same, as he had been
advised to do by the EDO (Revenue), instead of filing an appeal before the Land
Commissioner. Orders dated No vember 22, 2007, May 3, 2008 and July 14, 2008 passed
by the EDO (Revenue) Quetta did not call for any interference and the Land Commissioner
wrongly entertained the 'appeal' and assumed jurisdiction, and the Member -II, Board of
Revenue erred in not sett ing aside the order of the Land Commissioner.
25. The Land Commissioner disregarded the provisions of sections 53 and 172 of the
Act and wrongly assumed jurisdiction in the facts and circumstances of the case. He thus
committed a major error, whic h error was not corrected by the Member -II, Board of Revenue,
and therefore both of them did not act in accordance with law. Under such circumstances the
constitutional jurisdiction of this court can be invoked to correct the illegality. Reliance
in this regard is placed upon the case of Noorwar Jan v. Senior Member, Board of Revenue,
N.-W.F.P. PLD 1991 Supreme Court 531, wherein the Hon'ble Supreme Court set out the
circumstances when the High Court, in its constitutional jurisdiction, could corr ect errors
committed by the revenue authorities: --
"The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory
duty of interpreting the law, of applying it to individual cases coming up before it and laying
down the law for t he subordinates in the hierarchy to follow. Any error on its part in
understanding the law, in applying it or in laying down the law can and must be corrected in
the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the r ule of
law."
"The above observations have to be read with one qualification pointed out by this Court in
Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24),
in the following words: -
'It may be further observed that a lthough t he conditions for grant of certiorari which obtain in
English Courts do not apply to High Courts in Pakistan at the same time the extent of this
constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An
appeal is a creati on of statute and if no appeal is provided by the Legislature the
determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the
High Court is therefore limited to the inquiry whether the tribunal has in doing the act or
undertaking the proceedings acted in accordance with law.' "
26. We therefore declare that the impugned orders dated November 26, 2008 and January
23, 2009 respectively passed by the Land Commissioner and Member -II, Board of Revenue
were contrary to the p rovisions of sections 53 and 172 of the Balochistan Land Revenue Act,
1967, passed without lawful authority and are of no legal effect. Consequently all mutation
entries in respect of the said two properties, made prior to the said impugned orders, remain
intact and respondents Nos.17, 18, and 19 are directed to restore the same.
27. That for the reasons mentioned above this petition is allowed in the aforesaid terms,
but with no order as to costs.
SAK/85/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.