2022 M L D 143
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD HANIF and 6 others ---Petitioners
Versus
Syed ZAKIR HUSSAIN SHAH and 8 others ---Respondents
C.P. No.1388 of 2019, decided on 15th October, 2020.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.42, 45 & 53 ---Constitutional petition ---Mutation ---Petitioners contended that
petitioners were recorded owners of the properties; they also owned possession of shamilat
land; that father of respondents taking benefit of the predecessor -in-interest of the petitioners
got the properties recorded in his name as lathband buzgars at the time of settlement
regarding unsettled lands ---Senior Member Board of Revenue accepted Revision petition of
respondents (imp ugned order) and directed the Deputy Commissioner/Collector for disposal -
--Validity ---Order sheet revealed that neither any summons was served upon petitioner, nor
ex-parte proceeding had been initiated, and petitioner was not heard ---Senior Member Board
of Revenue had no jurisdiction to directly entertain any revision after lapse of longstanding
entries i.e. 34 years ---No order was passed by subordinate Commissioner/Deputy
Commissioner ---Respondents jumped over more than two lower forums ---Respondents
them selves disputed the title of the properties and Revenue Court lacked jurisdiction in
matter whereby title was to be determined ---Respondents concealed the civil suit and appeal
before High Court from the Senior Member, hence, did not go before Revenue hier archy with
clean hands ---Impugned order was in derogation of Ss.45 & 53 of the Balochistan Land
Revenue Act, 1967 ---High Court set aside the impugned order and quashed the proceeding
before Deputy Commissioner ---Constitutional petition was accepted accordi ngly.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.42, 43, 45 & 53 ---No disputed entry in Record of Rights or periodical record could be
altered, either on the ground of mistake or fraud, except on the basis of obvious clerical error
or p atent facts, requiring no elaborate inquiry for their establishment ---Disputed entries
having been incorporated in the Revenue Record could only be corrected through decree of
Court and not by order of any of the official in the hierarchy of revenue author ities,
particularly after the lapse of more than five decades.
Waris Khan v. Col. Humayun Shah PLD 1994 SC 336; Rasta Mal Khan v. Nabi
Sarwar Khan 1996 SCMR 78 and Nemat Ali v. Malik Habibullah 2004 SCMR 604 rel.
(c) Balochistan Land Revenue Act (XVII of 1967) ---
----S.42 ---Mutation ---Dispute pertaining to the title of property ---Only civil court had
jurisdiction to make decision to the effect ---Disputed question of fact regarding title could
not be decided by the Revenue Officer/Revenue Court by way of mutation proceedings
which were summary in nature.
Muhammad Amir Rana, Zarghoona Barreach and Jalil -ur-Rehman Kakar for
Petitioners.
Syed Mumtaz Hussain Baqri for Respondents Nos.1 to 4.
Khalil -ul-Zaman Alizai, Additional Advocate General ("AAG") for Respondents
Nos.5 to 9.
Date of hearing: 5th October, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .----The petitioners have invoked the Constitutional
jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 with the following prayer: -
"a) To declare that the impugned order/judgment dated 18.07.2019 passed by the
respondent No.8/learned Senior Member Board of Revenue Balochistan at Quetta, is
without jurisdiction, such is null and void.
b) To declare that the pres ent petitioners was unheard condemned, on the basis whereof
the impugned order/judgment dated 18.07.2019 passed by the respondent
No.8/learned Senior Member Board of Revenue Balochistan at Quetta, is set aside.
c) To declare that the respondents Nos.1 to 4 revision under section 164 of the Land
Revenue Act, 1967 was not competent against the present petitioners.
d) To declare that the respondents Nos.1 to 4 revision under section 164 of the Land
Revenue Act, 1967 was/is hopelessly time barred.
e) To declare that the respondent No./8/learned Senior Member Board of Revenue
Balochistan at Quetta, has no suo motu jurisdiction in subject matter in hand, as well
as to be careful in future rather then this matter.
f) Further pleased directs the respondents N os.1 to 4 to pay the costs of litigation
afforded by the present petitioners.
g) Any other relief as seems or deemed and properly fit by this Hon'ble Court, may
graciously be pleased awarded in present petition, in the interest of justice, equity and
fair play".
2. Brief facts of the case are that the private respondents filed revision petition under
section 164 of the Land Revenue Act, 1967 ("the Act") for deleting names of the petitioner
(who is respondent in the revision) as lathband buzgars having a rec ord without verification
by respondents Nos.5 to 7 by taking suo motu action with the averments that the petitioners
(respondents in the present petition) were recorded owner of the properties bearing Khasra
No.158, measuring 22 Rod, 19 Poles in Mahal and Mouza Khushkaba Saadat, Tappa
Shadinzai, Tehsil and District Quetta since time in memorial and were presently in
cultivating possession of the above property and from the adjacent to the above property the
predecessor -in-interest of the petitioners also ow ned possession of Shamilat Land bearing
Khasra Nos.165, 166, 167, 168 and 169 total measuring 24 Rods 17 Poles in same Mouza
and Mahal and were also cultivated by the petitioners. It is further averred in the said
revision petition that the settlement oper ation started in Quetta District in 1985 regarding
unsettled lands wherein several illegal entries in record of rights were carried out. The
settlement was carried out for the properties which were not included in the settlement
operations carried out in 1 901-1905 and 1941 -1945. At the time of settlement the
predecessor -in-interest of the petitioners being out of Quetta, thus, father of respondents
Nos.1 to 7 taking benefit of their absence got recorded properties of the petitioners in his
name as lathband buzgars of the predecessor in interest of petitioners and petitioners whereas
he never remained lathband buzgars over the properties of petitioners nor ever remained in
possession. Lastly, prayed that all concerned revenue record pertaining to the year 190 1-1908
and 1941 -1945 may be called for and after perusal of the same and conducting thorough
inquiry suo motu action as contemplated under the law may be taken by directing removal of
name of father of respondents Nos. 1 to 7 and respondents Nos. 1 to 7 fr om revenue record
and names of petitioners may be ordered to be entered as owners with possession in revenue
record, in the interest of justice.
3. The Senior Member Board of Revenue Balochistan, Quetta, on 18.07.2019 accepted
the revision petition with th e following manners: -
"In view of the above circumstances, I am inclined to remand the subject case under
section 64 of the Land Revenue Act, 1967 to the Deputy Commissioner/Collector,
Quetta, to dispose of on merit under section 161 of the Land Revenue A ct, 1967".
4. Being aggrieved from the order dated 18.07.2019 the petitioner filed the instant
constitution petition.
5. We have heard the learned counsel for the parties and have gone through the available
record with their able assistance.
6. The order s heets of the learned Senior Member Board of Revenue Balochistan,
Quetta, reveals that the revenue revision under section 164 of the Act has been registered on
dated 08.03.2019 on even date the Presiding Officer of the office of Senior Member Board of
Reven ue Balochistan, Quetta, directs to issue notices to the parties on the same date. The
case was fixed on 18.03.2019. The record is absolutely silent whether the processes have
been served or otherwise? From the order sheets of the learned Senior Member Boar d of
Revenue Balochistan, Quetta, dated 08.03.2019 to date 18.07.2019 reveals that neither any
summon was served upon present petitioner, nor ex -parte proceeding has been initiated, and
without hearing the petitioners the learned Senior Member Board of Rev enue Balochistan,
Quetta, passed the impugned order. Even otherwise, the learned Senior Member Board of
Revenue Balochistan, Quetta, was the result of mis -exercise of jurisdiction because the
learned Senior Member Board of Revenue Balochistan, Quetta, has no jurisdiction to directly
entertain any revision after the lapse of longstanding entries i.e. 34 years.
The said revision petition under section 164 of the Act was not competent before the
learned Senior Member Board of Revenue Balochistan, Quetta, beca use no order was passed
by any subordinate Commissioner/Deputy Commissioner. As per settlement law, the Land
Revenue Act, 1967, if any aggrieved party, parties, person, persons, etc, desires to assails
any settlement or revenue record, a record of right, t hat should be challenging the same
before the settlement officer within thirty (30) days, and file appeal under section 161 of the
Act within a period as prescribed in section 162 of the Act, i.e. sixty (60) days before
Collector, and before the Board of R evenue is ninety (90) days. The private respondents
Nos.1 to 4 jumped the lower more than two forums while filing revenue revision before the
respondent No.8/learned Senior Member Board of Revenue Balochistan, Quetta, it was/is
binding upon them firstly ap proach the concerned Settlement Officer and then Commissioner
thereafter forum was Senior Member Board of Revenue Balochistan, Quetta, as such, the said
revision filed by the respondents Nos.1 to 4 was unlawful.
7. Now dilating upon the merit of the case i s concerned, the respondents Nos.1 to 4
disputed the title of the petitioners while the respondents filing counter affidavit taken
Preliminary Legal Objection 'A' "that the factual controversies are involved in the matter
which needs evidence and perusal o f record by revenue officer as fraud has been played by
petitioners in getting the suit properties of respondents Nos.1 to 4 in their names". The
respondents themselves disputed the title of the properties. The respondents Nos.1 to 4 also
filed Regular Fir st Appeal No.28 of 2010 titled Shoukat Hussain and another v. Member
Board of Revenue Balochistan, Quetta and others which was decided on 01.04.2013 by this
court. The said appeal was filed by the respondents Nos.1 to 4 against the petitioners and
responde nts Nos.5 to 9 against the judgment dated 20.11.2009 of Civil Judge -II, Quetta,
whereby suit filed by the respondent Nos.1 to 4 against the present petitioners was dismissed
in respect of the same property. The appeal filed by the respondents Nos.1 to 4 be fore this
court was also dismissed on 01.04.2013 by this court. In the said suit, the title of the land
property was also disputed.
8. Though it is a legal proposition that the revenue courts lack jurisdiction in the matters
whereby title of the parties is to be determined. Rather in respect of disputes pertaining to the
title of landed property, only civil courts have jurisdiction to make the decision to the effect.
Declaration of title can only be made by a court of competent jurisdiction.
9. After perusal of the revenue revision under section 164 of the Act filed by the
respondents Nos.1 to 4 before the learned Senior Member Board of Revenue Balochistan,
Quetta, was concealed the fact in respect of the civil suit and appeal before this court and
respondent Nos.1 to 4 did not come with clean hands before the revenue hierarchy.
10. In view of the contention raised by the learned counsel for the respondents Nos.1 to 4
about maintainability of the revenue revision under section 164 of the Act before the learned
Senior Member Board of Revenue Balochistan, Quetta, a query was posed to him that
whether the facts and circumstances of this court and statement made by him do not relate to
the factual controversy and whether the longstanding revenue e ntries can be changed in a
summary manner. He responded that under section 42 of the Land Revenue Act, 1967 the
revenue officers are empowered to correct a mistake in the Record of Rights. When his
attention was invited to the provision of sections 45 and 53 of the Land Revenue Act, 1967
which envisages that variation of entry in record and correction thereof can only be made
with respect to undisputed acquisitions of interest, he again wrong his earlier stance and
stated that in case of inheritance entry n o such restriction can be imposed and when asked
about the limitation, he stated that no limitation runs against void entries, therefore, the order
was correctly passed.
11. For the sake of arguments, if the contention of the learned counsel for the respon dents
Nos.1 to 4 is accepted, it will not only amount to diminish the whole scheme of law by
offending the provisions of section 53 of the Land Revenue Act, 1967 but the provision of
section 42 of the Specific Relief Act, 1877 (the Act) will also become in applicable in all
cases of disputed and controversial entries in the Record of Rights or in the periodical record.
At this juncture, it would be instructive to reproduce the sections 45 and 53 of the Act.
"45. Restriction on variations of entries in recor d.---Entries in a record -of-rights or in
a periodical record, except entries made in periodical records with respect to
undisputed acquisition of interest under section 43, shall not be varied in subsequent
records otherwise than by ---
(a) making entries i n accordance with facts proved or admitted to have occurred.
(b) making such entries as are agreed to by all the parties interested therein or are
supported by a decree or order binding on those parties; and
(c) making new maps where it is necessary to mak e them.
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 Right' 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 I
of 1877).
12. In view of the provision supra, we are of the considered view that the disputed
question of fact regarding title cannot be decided by the Revenue Of ficer/Revenue Court by
way of mutation proceedings which are summary in nature, in such like cases the parties
ought to have approached the civil courts, in the instant case the perversity of approach is
reflected by the conduct, because the revenue procee ding was initiated regarding a dispute in
respect of the property which is in the name of petitioners coupled with the validity of
mutation entries. The order passed by the respondent No.8/learned Senior Member Board of
Revenue Balochistan, Quetta, is not in accordance with the mandatory provision of section
53 of the Act as well as the law laid down by the superior courts. We are dismayed that the
learned Senior Member Board of Revenue Balochistan, Quetta, has not appreciated this
aspect of the matter. Des pite the fact that he provision supra in clear terms states that the
dispute regarding entry in the record of rights or in the periodical record as to any right has
to be taken to the court of civil jurisdiction. The revenue authorities had no authority to
correct the longstanding entries in the revenue record in a summary manner.
13. Besides the above, the section 45 of the Land Revenue Act, 1967 provides that the
variation in a periodical record could be made with respect to the undisputed acquisition of
an interest in terms of section 43(a) of the Act, on the basis of facts proved or admitted.
Likewise, such corrections were permissible with the consent of all the parties or which are
supported by a decree or order binding on parties and no otherwise. All these bring us to hold
that no disputed entry in a Record of Rights or periodical record could be altered, either on
the ground of mistake or fraud, except on the basis of obvious clerical error or patent facts,
requiring no elaborate inquiry for their es tablishment, thus, the disputed entries having been
incorporated in the Revenue Record could only be corrected through a decree of the court
and not by order of any of the official in the hierarchy of revenue authorities, particularly
after the lapse of mo re than five decades. For rendering this view we have been supported by
the judgments in case of Waris Khan v. Col. Humayun Shah (PLD 1994 SC 336), Rasta Mal
Khan v. Nabi Sarwar Khan (1996 SCMR 78) and Nemat Ali v. Malik Habibullah (2004
SCMR 604).
14. The matter in hand is not merely a question of mutation, but it directly relates to the
title of the parties and the validity of mutation entries. The effect of section 53 of the Land
Revenue Act, 1967 was not considered by the Member Board of Revenue, there fore, the
order of the Senior Member Board of Revenue Balochistan, Quetta, is not sustainable in the
eyes of law, as such, the impugned order has been passed in utter violation of the mandatory
provision of the Land Revenue Act, 1967.
Thus, in view of the above discussion and the dictum laid down by the Hon'ble apex
Court, we have no other option but to direct that the order dated 11.07.2019 passed by the
Senior Member Board of Revenue Balochistan, Quetta, is hereby set aside. Consequently, the
proceeding pending before the Deputy Commissioner/Settlement Officer is also quashed.
However, the respondents Nos.1 to 4 may approach the civil court for redressal of their
grievances by means of filing a declaratory suit before civil court as envisaged under sectio n
53 of the Act for all just exceptions.
Resultantly, this petition is hereby accepted.
ZH/20/Bal. Petition allowed.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,
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