P L D 1966 W (PLP)

Ch. Azam Ali for Petitioner. Muhammad Iqbal Cheema for Respondent. This is a second revision filed against an order dated the 19th of June 1963, passed by the Commissioner, Lahore, whereby he dismissed the revision filed by the petitioner. The facts of the case are that through a registered deed dated 15‑11‑1951, the petitioner bought 4 kanals from the northern portion of Khasra No.

28. A mutation No. 626 was entered on 21‑11‑1951, but was not attested as no tatimma had been prepared. It remained pending till 1953. In the meanwhile the respondent also purchased an area of 4 kanals 5 marlas from the same Khasra No. 28 through a registered deed dated 15‑1‑1953 and another mutation No. 648 was entered on 3‑2‑1953. Since both transactions related to the same Khasra No. 28 afresh tatimma was prepared and the previous tatimma prepared in connection with mutation No. 626 was cancelled. On the basis of the new tatimma mutation No. 626 and mutation No. 648 were attested by the Assistant Collector on 21‑3‑1953 and 31‑3‑1953 respectively. The petitioner felt dissatisfied and moved the Revenue Assistant for the review of all the mutations. The necessary permission was given and on review, a new mutation bearing No. 668 was sanctioned. The respondent went in appeal to the Collector, who remanded the case for fresh attestation. The petitioner went in second appeal to the Commissioner, but this was dismissed. Subsequently a fresh mutation No. 811 for correcting the tatimma was entered and was attested by the Assistant Collector after visiting the spot, making measurement and after hearing the parties and considering the evidence produced by them. The Assistant Collector held that the second tatimma prepared in connection with mutation No. 626 was correct and the other tatimma prepared in connection with the mutation No. 668 was wrong. The petitioner went in appeal to the Collector, but it was dismissed. He then went in revision to the Commissioner, Lahore, but the revision was also dismissed. Hence this second revision. I have heard the learned counsel for the parties and have examined the record. It is true that the learned Assistant Collector went to the spot and heard the parties. He, however,, made a fundamental mistake and gave preference to the second sale over the first. I also found that the basis on which he rejected the tatimma prepared in connection with mutation No. 668 was wrong. He presumed that in that tatimma, the length of Northern side of the portion given to the petitioner was 44 karams but according to the revenue record it should have been 54 karams. An examination of the tatimma originally prepared for mutation No. 626 showed that the measurement of the northern boundary of the Khasra No. 28 is 54 plus 59 karams. But the northern boundary consists of 2 lines, one is 54 karams long and the other is 59 karams. The original tatimma as well as tatimma prepared in connection with the mutation No. 668 give 44 karams boundary from the Northern eastern corner of Khasra No.

28. In the tatimma with mutation No. 668, the length of the northern boundary given to the petitioner is 44 karams. The balance of the first portion of the northern boundary, namely, 54‑44 karams, i.e. 10 karams have been given to the respondent. He has also been given the remaining line measuring 59 karams. The total of the three sectors given in the tatimma relating to the mutation No. 668 is, therefore, 44 plus 10 plus 59 karams, which is the same as 54 plus 59 karams. The decision of the learned Assistant Collector is, therefore, based on a wrong appreciation of the actual facts. This is a mistake which has caused material injustice to the petitioner and interference is, therefore, justified. I also find that the learned Collector and the Commissioner did not go into this aspect of the matter. They also ignored the basic mistake of the learned Assistant Collector that he gave preference to the second sale over the first and took measurement on the basis of the second sale. The learned Counsel for the respondent has referred me to P L D 72 and P L D

86. The legal position is quite clear. The Financial Commissioner (now Member, Board of Revenue) has unfettered discretion in setting those mistakes right which result in miscarriage of justice. It is true that these unfettered powers have to be exercised with care, but in this case I find that the learned Assistant Collector's order was basically wrong and against facts. An interference is, therefore, perfectly justified. In these circumstances, I accept this second revision and direct that the tatimma prepared in connection with mutation No. 668 will determine the rights of the parties and the mutation will be sanctioned in accordance therewith. K. M. A.????????????????????????????????????????????????????????????????????????????????? Revision accepted.