P L D 1962 W (PLP)

The facts briefly are that Nawabzada Munawar Ali Beg petitioner sold 20 Canals of land situate in revenue estate Guru Mangat Koana to Muhammad Abdullah deceased, father of the respondents for Rs. 3,500 on 31-1-1941. At the time of attestation of the sale mutation No. 24, the Revenue Officer, asked the parties for proof whether the vendee belonged to a Notified Agricultural Tribe of the same group. Muhammad Abdullah had produced copies of revenue records of the corporation, which showed him to be a Rajput. These were not accepted by the Revenue Officer, who referred the matter to the Deputy Commissioner, vide his order dated 19-2-42 on the mutation sheet. The latter refused to decide the question of Muhammad Abdullah's caste in summary mutation proceedings and ordered as 20 Kanals was a large area that an enquiry to be made from him whether he was prepared to take the land on usufructuary mortgage. He also said that Muhammad Abdullah be advised, if he so desired, to get the question of his caste adjudicated on under section 4 of the Punjab Land Alienation Act. I must affirm that the Collector ought not to have shirked deciding the issue as to whether the sale transaction was or was not hit by section 3 of the Punjab Land Alienation Act. He could not, without deciding whether Muhammad Abdullah was or was not a member of a proper Notified Agricultural Tribe, or whether the 20 Kanals were land as defined in section 2 (3) of the Land Alienation Act, decide the issue whether the sale should be sanctioned as such, or converted into a usufructuary mortgage. His order is not a clear cut one, for it does not state what is to be done if Muhammad Abdullah did not agree to the conversion of the sale into a usufructuary mortgage, since the possession of 20 Kanals of `ghair mumkin kallar' as these are described through out in the revenue records could not yield much by way of income. Presumably the Collector had intended that if Muhammad Abdullah was not agreeable to the conversion of the sale into mortgage, the Revenue Officer should refer the case back to him for further orders. But on receipt of the papers from the Collector, the Revenue Officer, without promptly summoning Muhammad Abdullah and obeying the orders, converted the mutation of sale into one of 20 years usufructuary mortgage and attested it as such with effect from 31-1-1941. He also ordered that parties be informed, but no record has been produced before me as to whether the parties were in fact informed. This attestation of mutations, without proper adjudication of the important issue involved as to whether the transaction of lands against the Land Alienation Act and without the comments and behind the back of the parties was most Improper. It was contrary to the Collector's written orders on the mutation sheet. It was also contrary to section 37 of the Punjab Land Revenue Act which provides "Entries in records-of-rights . . . . . shall not be varied in subsequent records otherwise than by- (a) making entries in accordance with the facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested there in or are supported by a decree or order binding on those parties. This contravention of the clear provisions of the law was bad enough. What is worse is that Muhammad Abdullah was able to secure a complete reversal of the above entries, which must have been incorporated in at least two subsequent quadrennial jamabandis through mutation of sale No. 793 on 1-12-1950. The mutation sheet shows that after the issue of. Notification No. 657-R, dated 3-4-1950, to the effect that owners of land in a district would be Members of a Notified Agricultural Tribe, Muhammad Abdullah, seems to have put in some sort of a review application, which has not been produced before me and I am unable to say whether in dealing with it the Mandatory Provisions of section 15 (1) (a) and (b) of the Land Revenue Act were complied with. On the basis of this, the Patwari entered the aforesaid fresh mutation vide his note in the remarks column. It is not understood why the normal procedure of taking action for review under section 15 of the Punjab Land Revenue Act was not followed on mutation sheet No. 24, whereby the usufructuary mortgage stood sanctioned for over 9 years. Now it is settled law that notifications do not have retrospective effect. It is also a principle of jurisprudence that a transaction of 1941, which had been declared void under the law than in force and had been converted into the permissible form of 20 years usufructuary mortgage, could not 10 years thereafter be validated retrospectively and unilaterally in summary review proceedings. Moreover the Revenue Officer completely flouted the important provisions of section 15 (1) (c), of the Land Revenue Act. This provides "That an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order." He had taken up this mutation on 30-6-50, but had postponed it to his next visit, as the vendor was not present. However, at the next hearing he did not care for the presence of the vendor and sanctioned the mutation on the basis of the registered deed of 1941. I must confess that I am taken aback at this flagrant violation of the fundamental principles, which every Revenue Officer must know before he can be entrusted with the attestation of mutations and the disposing of the rights o1 landowners and tenants. The Collector, Lahore, must look into the attestation of these mutations, particularly of No.

793. If the Revenue Officer attesting that mutation is still in service disciplinary action is called for against him. He should be charge-sheeted for not only attesting a mutation contrary to the provisions of section 37, but also attesting it without granting the mandatory opportunity to the vendor to appear and be heard under section 15 (c). This appears essential in the public interest. When the cases went in revision, M. Z. Khan, Member, cancelled this mutation of sale and restored mutation No. 24 of usufructuary mortgage, under his order in R. O. R. No. 328 of 1956-57. The present respondents then filed a declaratory civil suit, which on appeal was decreed in their favour by the Additional District Judge, Lahore. Normally the jurisdiction of Civil Courts is barred under section 21 of the Punjab Land Alienation Act. However, the learned Additional District Judge gave the finding that since the 20 kanals sold to Muhammad Abdullah the predecessor-in-interest of the present respondents, was shown as ghair mumkin kallar, it was not `land' and therefore, the case did not fall within the ambit of the Punjab Land Alienation Act. The petitioner has filed an appeal in the High Court against this decision. In view of the finding of the Additional District Judge, Lahore, jurisdiction of Revenue Officers and the Board of Revenue is barred, unless and until the superior Civil Courts upset his finding that `the ghair mumkin kallar' land sold is in fact not `land' within the definition of `land' as contained in section 2 (3) of the Punjab Land Alienation Act. The petitioner has urged before me that the 20 kanals sold is `land', because it is used for pasture. I have explained that this is a question which has to be decided by the High Court in his appeal. The Revenue Courts will have jurisdiction to determine whether Muhammad Abdullah deceased was or was not a member of the same Agricultural Tribe, only if the High Court is pleased to hold that the land sold was in fact `land', within the meaning of the Punjab Land Alienation Act. In so far as the present revision is concerned, I have no option but to file it. It has, however, been reported to me that no intimation was forwarded by the learned Additional District Judge, Lahore, to the Deputy Commissioner, Lahore, in accordance with the mandatory provisions of section 21-A (1) and (4) of the Punjab Alienation of Land Act. If this is so, it must presumably be in view of the Additional District Judge's opinion that as he had held the 20 kanals not to be 'land', the jurisdiction of the Deputy Commissioner was ousted. In my opinion the object of section 21-A, is to keep the Deputy Commissioner informed of border line cases in order that he may file appeals or revision under section 21-A (2) to the higher Civil Appellate Courts. It would defeat the object underlying the Alienation of Land Act, if copies of orders of Civil Courts in such cases are denied to the Deputy Commissioner. A copy of this order will, therefore, be forwarded to the Additional District Judge so that he may kindly supply a copy of his appellate order to the Deputy Commissioner, Lahore, if he has not already done so. A copy of my present order will also be sent to the Deputy Commissioner, Lahore, for consideration of the question whether he too should under section 21-A (2) join the petitioner in second appeal to the High Court if he is of the opinion that the 20 kanals of land fall within the definition of `agricultural land' as contained in the Punjab Alienation of Land Act. S. B. Order accordingly.