2016 PLP 258 (YLR)

WAHEED AKHTAR ANSARI, MEMBER, (JUDICIAL-III).

This revision petition has been filed against order dated 30-5-2012, passed by learned Additional Commissioner (Consolidation), Multan Division, Multan, whereby appeal of the present respondents was accepted.

2. Arguments heard and record perused.

3. Learned counsel for the petitioner argued that the order dated 30-5-2012 passed by learned Additional Commissioner is against the law and facts of the case. The petitioner purchased the property vide registered sale deed No.2245, dated 12-3-2007 and sale deed No.2336, dated 14-3-2007 and this land was mutated in his favour vide mutation No. 27357, dated 23-10-2008 and Mutation No.27358, dated 23-10-2008. The said registered sale deed has not been cancelled by any competent court of law. Therefore, the petitioner is bona fide purchaser. The said property was purchased from the respondent No.2 Rana Muhammad Imran Babar who was owner of the same and was lawfully entitled to sell it. But this very vital aspect of the case was not taken into consideration by the lower court while passing the impugned order. Thus, the lower court came at a wrong and unlawful conclusion. The predecessor in interest of the respondents Nos. 3 to 9 was owner of 6-marlas, 4-yards of land according to record of rights for the year, 1999-2000 but he sold the land measuring 2-kanals, 6-marlas through the impugned mutations No.14202, 14524 and 16030, therefore, he sold land over and above his lawful entitlement. Thus, learned District Officer (Revenue), Multan ordered that the disputed mutation be reviewed. However, the impugned order dated 30-5-2012 is the result of non-reading and mis-reading of the record which culminated into the infliction of injustice. Finally, it was prayed that the revision petition may be accepted.

4. Learned counsel for the respondents argued that the respondents purchased the disputed land from one Abdul Sattar through agreement to sell dated 06.10.1996 and then registered sale deed No.2074 dated 12.07.1997 was executed. Subsequently, the respondents constructed their house over the said land and are residing there. However, on 11.03.2006, the present petitioner submitted an application to learned District Officer (Revenue) for correction of record and during pendency of the said application, alienated the land to Muhammad Imran, respondent No.8 before learned Additional Commissioner. Consequently, the application of the present petitioner became infructuous as he virtually admitted the position of record. The petitioner was well aware about the sale transaction in favour of the respondents. The learned District Officer (Revenue) ordered review of the mutations without hearing contention of the respondents. It is admitted position of the case that a suit for declaration touching title of the parties is pending in the Civil Court and in presence of the same, the revenue authorities may not pass any order in this behalf. Learned Additional Commissioner rightly set aside the order dated 09.05.2009 passed by learned District Officer (Revenue) being illegal and void in the eyes of law and no irregularity or illegality has been pointed in the order dated 30.05.2012 passed by learned Additional Commissioner. Finally, it was prayed that the revision petition may be dismissed.

4. I have considered the arguments of the counsel for the parties and perused the record available in the case file including the impugned orders. Brief of the matter is that Rana Muhammad Imran Babar, present respondent No.2 filed an application to the District Officer (Revenue). Multan mentioning therein that he became owner of land measuring 02-kanals, 08-marlas, 17-years, in Mauza Neel Kot vide mutations 13145, dated 16.05.1997 and 13257, dated 16.06.1996. The present respondent got registered a sale deed No.4807, dated 26.06.1997 through a fabricated ownership certificate and same, was got implemented through mutation No.14524 and is now interfering into the possession of Rana Muhammad Imran Babar and prayed for cancellation of the said mutation. The learned District Officer (Revenue) after obtaining report from the revenue filed staff vide order dated 09.05.2009 granted permission for review of mutation No.14524 and other mutations for correction of revenue record. "I have heard the counsel for the petitioner and perused the record/ reports submitted by revenue field staff carefully. From the perusal of record/reports it is evident that Abdul Sattar vendor of respondents was owner of land measuring 05 marlas 04 yards but he transferred land measuring 02 kanals 06 marlas through mutations Nos.14202, 14524 and 16030. In this way he alienated excess land measuring 02 Kanals 26 yards than his entitlement. Therefore, for the correction of revenue record, I in exercise of powers under section (sic) of Land Revenue Act, 1967 grant permission for review of mutations Nos.14202, 14524 and 16030 to the extent of required land/share. The Revenue Officer concerned is directed to proceed further as per law"

5. Feeling aggrieved. Mst. Aziz Fatima, the present respondent filed an appeal before the then learned Executive District Officer (Revenue), Multan, who vide order dated 19.12.2009 sine die adjourned the appeal on the consent of the counsel for the parties. Mst. Aziz Fatima challenged the said order before the Member (Judicial-III), Board of Revenue, Punjab, Lahore and took plea that the title of the disputed property is under dispute before the civil court and the Executive District Officer (Revenue), Multan should have to set aside the order dated 09.05.2009 of the District Officer (Revenue), Mutlan and then sine die adjourned the case. The Member, Board of Revenue, Punjab vide order dated 05.07.2011 accepted the appeal of Mst. Aziz Fatima and remanded the case to learned Additional Commissioner (Consolidation), Multan for decision afresh after setting aside the order dated 19.12.2009. The operative part is as under:-- "I have given due consideration upon the arguments advanced by learned counsel for the parties and have also gone through the record of case coupled with impugned orders. On examination of the record, it is established that the disputed land was purchased by the petitioner through registered sale deed No.2074 dated 12.07.1997 and alienated in favour of the petitioner vide mutation No.14524, dated 1.2.2006. However, the respondent No.1 submitted an application before the District Officer (Revenue), Multan for review of the above said mutation who granted permission for review of the same. The present petitioner assailed that order through appeal which was sine die adjourned by the Executive District Officer (Revenue), Multan vide order dated 19.12.2009. It was just permission to review granted by the District Officer (Revenue) and that too for correction of record. Correction of record is exclusive responsibility of District Collector. In a way the order of Executive District Officer (Revenue). Multan has created hurdle in correction of record, therefore, the same is set aside. Consequently, the revision petition is accepted and the case is remanded to the Additional Commissioner (Revenue), Multan Division for fresh decision after hearing contentions of the parties and the applicant. The parties are directed to appear before him on 07.08.2011.

6. Thereafter, the Additional Commissioner (Consolidation), Multan Division, Multan, vide order dated 30-5-2012 accepted appeal of the present respondent. The concluding para of the order is as follows:-- "I have heard the counsel of the parties and perused the record. The record shows that respondent No.1 affixed his signature as witness on the agreement deed dated 06.10.1996 of the appellant. Thereafter, the appellant got executed the sale deed in his favour vide No.2074 dated 12.07.1997. In this way, the respondent No.01 was well aware of the purchase of the disputed land by the appellant but he filed an application for correction of revenue record before the District Officer (Revenue) Multan in the year 2006. The lower court passed the ex-parte impugned order dated 09.05.2009 through which permission to review the mutation No.145524 of the appellant was granted. Both the parties admit that civil suits of the disputed property are pending in the civil court in which the title has been challenged. It is an established law that when a title of a property is in dispute, then the revenue court has no jurisdiction to pass any order in a matter which is complicated one. Moreover, the impugned order has been passed ex-parte which is against law. In view of aforementioned reasons, I accept the appeal and set aside the impugned order dated 09.05.2009 and direct the parties to get the matter of title settled from the civil court and then approach the revenue court for its implementation in revenue record".

7. The main contention of the respondents is that the matter touching title of the parties was pending in the Civil Court which is the competent forum and during pendency of the same, learned District Officer (Revenue) ordered review of the disputed mutations Nos.14202, 14524 and 16030 for which he was not competent. The respondents' contention was quite lawful that the present petitioner was not owner at the time of sanction of such mutation and purchased such property during pendency of litigation, which is hit by principle of lis-pendens, relying on 1993 MLD 486 Lahore, which reads as under:-- "Mutation in respect of suit property sanctioned during pendency of appeal out of the suit

such mutation would be hit by the principle of lis pendens and would not take effect so far as property in question was concerned".

8. The impugned order has been passed in terms of section 163 (2), of Land Revenue Act, 1967, which reads as under:-- "Any person considering himself aggrieved by an order passed by [a Commissioner], Collector or an Assistant Collector, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply for a review of the order to [the Commissioner], Collector or Assistant Collector, as the case may be, and such officer may modify reverse or confirm any order passed by himself or by any of his predecessors-in-office:

9. It is clear that only, the Revenue Officer concerned/who sanctions the mutation is competent for seeking permission to review the mutation. In this particular case, such revenue officer is Naib Tehsildar/AC-II Multan City. But, learned District Officer (Revenue), Multan, at his own assumed the power ignoring the relevant provisions of law rendering the impugned order unsustainable in the eyes of law. Therefore, the order dated 09.05.2009 was rightly set aside vide impugned order dated 30.05.2012 passed by learned Additional Commissioner (Consolidation), Multan Division, Multan. The petitioner has failed to point out any material irregularity or illegality in the order dated 30.05.2012 passed by learned Additional Commissioner (Consolidation), Multan Division, Multan. Hence, the revision petition is dismissed being without merit and impugned order is upheld. HBT/17/Rev. Revision dismissed.