P L D 1997 Peshawar 1 (PLP)

(4) Whether the suit is incompetent in its present form? (5) Whether the plaintiffs are estopped to sue? (6) Whether the suit is bad for non‑joinder of necessary parties? (7) Whether the suit land was partitioned among the plaintiffs and predecessor of defendants Nos.2 to 5 vide Mutations Nos. 11932 attested in 1918 and 3579 dated 10‑2‑1910 which were incorporated in Fard Jamabandi 1974‑75? (8) Whether correction Mutation No. 1005 dated 14‑2‑1988 attested on the basis of fictitious file No. 103 decided on 30‑8‑1987 and gift Mutation No.995 dated 14‑2‑1988 are illegal, fraudulent, void and ineffective upon the rights of the plaintiffs? (9) Whether the plaintiffs being elder were given 59 Kanals 11 Marlas land extra than their shares? (10) Whether the plaintiffs are entitled to the decree as prayed for? (11) Relief.

4. The standpoint of the plaintiffs had not prevailed at the lower forums mainly for the reason that they had failed to establish the custom on the strength whereof they had got a larger share.

5. The learned counsel for the petitioners sought reversal of the impugned judgments and decrees on the following grounds:‑‑‑ (i) The Revenue Authorities had no jurisdiction to change the long standing entries in the Revenue Record. (ii) The revenue authorities had deprived the petitioners of a huge area measuring 59 Kanals 11 Marlas without giving them a notice or holding an enquiry. (iii) The factum of private partition stood established in view of Mutations Nos.3579 and 11932 attested in 1910 and 1918, delivery of possession of the partitioned property to the parties, gift Mutation No.272 and the failure of the respondents to challenge the partition mutations for about 70 years.

6. The learned counsel for the respondents on the other hand argued that under the provisions of section 172(2)(vi) of the West Pakistan Land Revenue Act the Revenue Authorities had exclusive jurisdiction to deal with the matters pertaining to correction of entries in the Revenue Record and the action taken b; them in the present case was justified is the entries in the Revenue Record were obviously wrong and in any case the petitioners had failed to prove the private partition and the alleged custom of giving extra land to the elders of the family in the event of partition.

7. The genesis of the dispute between the parties is traceable to partition Mutations Nos.3509 and 11932 which were attested in 1910 and 1918 and duly incorporated in the Revenue Record. The entries thus made subsisted for more than 70 years. Sometime in the year 1987 the defendant Mir Nawaz felt aggrieved by those entries but instead of filing a civil suit got the same obliterated by filing an application before an obliging Revenue Officer. No doubt under clause (iv) of subsection (2) of section 17'2 of the West Pakistan Land Revenue Act a Revenue Officer is empowered to order correction of an entry in a record of rights, periodical record or register of mutations but this I power is restricted to the correction of an entry which is patently wrong and cannot be exercised in regard to an entry which involved a question of right determinable by the Civil Court within the import of section 53 ibid or an entry which is long‑standing. In the present case long‑standing entries in the Revenue Record involving determination of the question of private partition, with special reference to the existence of the local custom of allotting a larger share to the elders of the family, were altered by the Revenue Officer with utmost facility without holding a proper enquiry and affording an opportunity to the plaintiffs of being heard. The impugned orders of the Revenue Authorities with regard to ,the correction of the entries in the Revenue Record thus suffer from a serious jurisdictional defect and as such are not sustainable. The matter, however, does not end here because the findings of the learned lower Courts on the issue of private partition are also not maintainable.

8. The plaintiffs were‑non‑suited by the learned lower Courts for the sole reason that they had failed to adduce evidence to prove the alleged custom on the basis of which their predecessor‑in‑office being the elders of the family were j given an area measuring 59 Kanals 11 Marlas in excess of their due share. The reason is rather lopsided as it undermines other forms of proof of a fact. The factum of private partition was admitted in most unequivocal terms by the defendant Bahadur Khan in, his statement recorded at the trial on 15‑2‑1990. , Besides, the possession of the subject‑matter of the partition mutations was delivered to the allottees, both the mutations were incorporated in the Revenue Record, the entries in the Revenue Record were never challenged by the precessor‑in‑interest of the defendants and the defendant Mir Nawaz, at whose behest the forums in the revenue hierarchy had put an. end to the private partition in the year 1987, had transferred the land given to his predecessor‑in‑interest Ghulam Haider in private partition in favour of his sons Bahadur Khan etc. through gift Mutation No‑272 dated 28‑2‑1979 which clearly shows that he was fully aware of the entries in the Revenue Record. All these factors go a long way to establish the claim of the plaintiffs, therefore, there is no need to look for oral evidence, which by now has become non‑existent, or an instrument of partition, which is seldom prepared in the rural set‑up of far‑flung areas where mutation is a preferred option. For aforementioned reasons, this revision petition is accepted, the impugned judgment and decrees are set aside and the suit of the plaintiffs is decreed with costs throughout. . A.A./2023/P Revision accepted.