2009 PLP 16 (CLC)

RAFIULLAH SULTANI, J.

This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Brief facts of the writ petition are that possession of the petitioners was recorded in Misl-e-Haqiat land regarding comprising Survey No.757 measuring 6 Kanals and 18 Marlas situated at Ghazi Gura Tehsil Bhimber, District Mirpur. On 24-4-1999 Naib Tehsildar (Then) recorded the possession of respondent No.9 in Khasra Gardawari through Fard Badar to the extent of land 1 Kanal and 8 Marlas on the basis of Purcha Bondobasti. Therefore, the petitioner filed an appeal before the Collector, Bhimber, who deputed the Revenue Assistant, Bhimber for spot inspection and report the matter. After the submission of report by the Revenue Assistant, Bhimber the Collector, District Bhimber dismissed the appeal and held that Revenue Courts have no jurisdiction to correct the Revenue Record and only the Civil Court is competent to correct the Revenue Record, which has been finalized. An appeal before the Commissioner as well as the Revenue Board were dismissed on the sole ground declaring that Revenue Courts have not vested its jurisdiction to correct the Revenue Record, which was already finalized. The petitioners prayed in writ petition that judgment of all the Revenue Courts are illegal without jurisdiction and liable to be set aside. After the admission of writ petition for regular hearing notices were issued to the respondents and the ex parte proceeding was proceeded against respondents Nos.1 to

8. On the direction of the Court written statement was filed by respondent No.9 in which he denied the allegation levelled in writ petition and prayed to dismiss the writ petition. The learned counsel for the petitioners reiterated the grounds of writ petition and further contended that the judgments of all Revenue Courts including judgments of respondents Nos.1, 3, 4 and 5 are without lawful authority and inoperative against the rights of the petitioners and the same are liable to be set aside. He further contended that correction of the entry of Revenue Record could only be made by the Revenue Courts and not by the Civil Court. In support of his version, he cited section 172 of Land Revenue Act, (2003 YLR 1788 and 2000 SCR 211). The learned counsel for respondent No.9 defended the judgment of Revenue Courts and further contended that Board of Revenue has rightly passed the judgment, dated 23-10-2003, which requires no legal interference by this Court. He further contended that writ is not competent because petitioners have already filed a civil suit. In support of his version he cited following case-law: 2002 PLC (C.S.) 1282 and 2004 YLR 1751. I have heard the learned counsel for the parties and gone through the record of the case carefully. The basic controversy between the parties is whether the order made by Naib Tehsildar for correction of Khasra Gardawari through Fard Badar dated 24-4-1999 in favour of respondent is legal? It is admitted by the parties that disputed land is Shamlat Deh. and it is also admitted according to Misl-e-Haqiat the possession of the petitioners was recorded as co-sharer. Here I want to reproduce an entry of column of cultivation, which reads as under:

It is evident from the entry of Misl-e-Haqiat that petitioners were recorded in possession of disputed land as co-sharer. It is evident from the record that Mutation No. 94 Seht Kashat was sanctioned in favour of respondent No.9, later on, which was cancelled by Collector in appeal on 9-9-2002. Again through Fard Badar dated 24-4-1994 the Naib Tehsildar (Then) changed the entry of Misl-e-Haqiat and in presence of the order of the Collector in appeal dated 9-9-2002. Question arises whether the Naib Tehsildar was competent to change entry of Misl-e-Haqiat after finalization of Revenue Record and after the judgment of Collector. Here I would like to reproduce the section 44 of the Land Revenue Act, which reads as under:

"

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 arises 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 subject 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 the parties thereto is in possession of any property to which the disputes 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 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 direction under subsection (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction. It is evident from the bare reading of above referred provision of law that Naib Tehsildar is not competent authority to make any order regarding disputed land, he can report the matter to the Assistant Collector. But this procedure has not been adopted in this case by the Naib Tehsildar. Another question arises that when Khasra Gardawari has been completed and after the drawn of Khat-e-Chleepa by the Patwari, whether the Naib Tehsildar was competent to change Khasra Gardawari? Suppose if I admit the argument advanced by the learned counsel for the respondent No.9 that Revenue Court is not vested its jurisdiction for correction of entries in Jamabandi, then question arises why respondent No.9 has not filed the suit in Civil Court for correction of entries in Misl-e-Haqiat 1994-1995 and why he did not file an appeal against the judgment of Collector dated 9-9-2002. Here I would like to reproduce the section 161 of Land Revenue Act, which reads as under:- "

161. Appeals.

(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of Revenue Officer as follows, namely

(a) to the Collector, when the order is made by an Assistant Collector, of either grade; (b) to the Commissioner, when the order is made by a Collector; (c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner." It is evident from the bare reading of above provision of law that when the order is made by an Assistant Collector of either grade then appeal lies to Collector. Coming to the facts of this case an appeal was filed before Collector against the impugned order, dated 24-4-1999. It is pertinent to note that no civil suit was pending before the Civil Court regarding the disputed land when the impugned order was made by the Naib Tehsildar. A copy of civil suit is attached with written statement titled Allah Bukhish v. Nawaz and others, which is instituted in the Court of Senior Civil Judge, Bhimber on 11-1-2002. This suit was a suit of permanent injunction. Even otherwise in presence of civil suit under section 172 of Land Revenue Act jurisdiction of Revenue Court is not barred. It was held in case titled Kh. Muhammad Akbar and 5 others v. Kh. Fateh Muhammad and 16 others reported in 2000 SCR 211, which reads as under:

"(a) Land Revenue Act

Sections 53 and 172(2)(vi)

The declaration regarding the shares of the plaintiffs is not barred under section 172(2)(vi) of the Land Revenue Act

Section 53 of the Revenue Act gives right to a person considering himself an aggrieved by an entry in the record of rights or any periodical record, to institute a civil suit for the redressal of his grievance under the provisions of section 42 of the Specific Relief Act; joint reading of section 53 and section 172(2)(vi) of the Revenue Act makes it amply clear that the suit filed by the plaintiffs-respondents is triable by the Civil Court, except to issue direction to the Revenue Authorities to correct the entries in the Revenue Record

If one of the reliefs sought by the respondents cannot be given to them due to lack of jurisdiction, it cannot be said that jurisdiction of Civil Court is also barred so far as other reliefs are concerned

Only the relief regarding the correction of the entries in the Revenue Record is barred under section 172(2)(vi) of the Revenue Act." It was further held in case titled Sardar Khan v. Ghulam Hussain and 31 others reported in 2003 YLR 1788, which reads as under:

"(a) Land Revenue Act, 1967

Under section 172

The Courts in cases where the correction of any entry in the record of rights or in the periodical record or register of mutations is concerned has been excluded

These matters are within exclusive competence of the Revenue Officers

Held: the suit filed by appellant was not maintainable before a Civil Court." Now, in view of survey of above referred case-law, it is settled position of law that Revenue Court has vested its jurisdiction to deal the matter in hand. I do not agree with the learned counsel for respondent No.9 that doctrine of laches is fully applicable on this case because the judgment made by the Member, Board of Revenue on 23-10-2003 and the writ petition was filed before this Court on 16-1-2004. All the Revenue Courts including the Member, Board of Revenue ignored the basic controversy regarding the matter and decided the other points, which were not basic controversy between the parties. The Revenue Authorities were required by law to decide all points in the light of pleadings of the parties, documentary evidence produced by the parties and argument advanced by the learned counsel for the parties. Such (sic) above, I accept this writ petition and the judgment of Member, Board of Revenue dated 23-10-2003, judgment of Commissioner, Mirpur Division dated 18-3-2003 and judgment of Collector District Bhimber dated 9-9-2002 are set aside and the case is remanded to Collector District Bhimber for a fresh decision in the light of observations recorded by me in this judgment. Writ petition is accepted. H.B.T./21/HC(AJ&K) Case remanded.