P L D 1964 W (PLP)

(a) Mutation Proceedings

summary in character‑To be held in public gathering and in estate to which they relate. (b) Appeal‑

Limitation‑Appeal barred by three days Condonation of delay by Commissioner in interest of justice Upheld, in view of prevailing rural conditions and nature of case Limitation Act (IX of 1908), S. S. This case relates to an oral sale of land measuring about four acres and included in the shamilat of village Kotha Kalan adjoining Rawalpindi town. The land was alleged to be in the cultivating possession of Karim Hayat one of tile co‑sharers and he sold it to his son Salim Hayat Khan for a consideration of Rs. 30,

000. A mutation to that effect was attested by the Assistant Collector on 1‑9‑1961. Fazal Khan respondent preferred an appeal to the Collector alleging that the land was in his cultivating possession. The appeal, however, was dismissed on the short ground that it was time‑barred. The learned Commissioner, Rawalpindi, interfered in revision, as he found that the mutation was not attested in the estate concerned and was decided behind the back of Fazal Khan and others at the Tehsil headquarters. He condoned the delay in filing the appeal to the Collector and remanded the proceedings to him for deciding the appeal on merits. A second revision has now been filed. Two main arguments have been urged before me. Firstly, that several other mutations were attested on that very day by the Revenue Officer at the Tehsil headquarters at a public gathering and there was, therefore, no reason for coming to conclusion that the mutation was decided in a clandestine manner. Secondly, that the Revenue Records do not support the plea advanced by Fazal Khan as the entries therein are in favour of Karim Hayat being in cultivating possession of the land. A reference to the earlier Revenue Records, however, shows that this piece of land has not been constantly in the possession of one party, and Fazal Khan is shown in possession of this lard previous to the entries in favour of Karim Hayat. In these circumstances it would have been more appropriate for the Revenue Officer to give Fazal Khan an opportunity of being hard and 1‑~ c decides this mutation in Rawalpindi town at headquarters. The procedure followed was contrary to the instructions issued by the Financial Commissioners on the subject which are to the effect that a mutation should be decided in a public gathering in the estate to which it relates. The reason for this procedure is obvious. Mutation proceedings are summary in character and no evidence in accordance with the provisions of Evidence Act is taken when deciding them Unless therefore these proceedings are held in an to which they relate and‑ in a public gathering an interested party or parties may be able to obtain a decision in their favour without the other co‑villagers being present to contradict them or to put forward a different case. It is true that the appeal was preferred after the period of limitation had expired but‑there was only three days delay and keeping in view the prevailing rural conditions and the nature o B the case it would have been in the interest of justice to condone it. This is obviously a mutation which should be taken up in the estate ab initio by the Assistant Collector in order to arrive at a correct decision. I would therefore modify the order passed by the learned Commissioner and direct that this mutation should be decided by the Assistant Collector in the estate after due notice to the interested parties, which would include the other co‑sharers in the shamilat. He should make certain when deciding the mutation whether the land involved is within the share of the alienor even if it is determined that he is in its cultivating possession. S. Q. Case remanded.