P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This writ petition is directed against the order of the Board of Revenue, West Pakistan, in Revision No. 11 of 1959‑60, dated the 2nd of January 1961 whereby the mutation effected in favour of the petitioner in respect of the share of one Muhammad Ilyas in the property in dispute under the orders of the Commissioner, Hyderabad was set aside. Originally the agricultural land in dispute measuring 444 acres 31 ghuntas situated in Mirpur Sakro, District Thatta belonged to one Gangaram Virumal and Muhammad Ilyas respondent No. 4 in proportion of ‑/10/8 and ‑/5/4 shares respectively. By two registered sale‑deeds dated the 21st of April 1947 these lands were purchased by Tikamdas Hiranand and Kishanchand Jethanand, respondents 2 and 3, and one Babulal in consideration of a total sum of Rs. 21,

500. In pursuance of this sale transaction the property in dispute was mutated in the name of the above mentioned purchasers. On the migration of Gangaram Virumal to India in December 1952 the entire transaction was declared void by the Mukhtiarkar under the evacuee law and the names of the original owners were again brought on the record‑of‑rights. In this writ petition we are, not concerned with the share of Gangaram Virumal which was the subject‑matter of Writ Petitions Nos. 434 and 435 of 1960 decided by a Bench of this Court on the 8th of April 1961. In those writ petitions the share of Gangaram Virumal In the property in dispute was also claimed by the petitioner. But a Bench of this Court, on consideration of the facts placed before it, came to the conclusion that the sale transaction in favour of respondents Nos. 2 and 3 having been confirmed by the Deputy Custodian, Evacuee Property, on the 10th of October, 1956, the shares of the Hindu evacuee was no longer evacuee property and the Custodian, of Evacuee Property was not competent to sell it to the petitioner. The Bench further held that as the share of the Hindu evacuees was not treated as evacuee property immediately before the 1st day of January 1957, the learned Custodian had no jurisdiction to exercise suo motu revisional powers under section 43 (4) in respect of the order of the Deputy Custodian in so far as it confirmed the sale transaction in favour of respondents 2 and

3. It, however, appears that after the Mukhtiarkar in 1952 restored the ‑/5/4 share in the property in dispute to Muhammad Ilyas, respondent No. 4, this respondent again sold his ‑/5/4 share to the petitioner under a sale‑deed dated the 31st of August 1957. Thereupon the petitioner Abdul Khaliq moved the Deputy Commissioner, Thatta, for mutating his name in the revenue records in place of Muhammad Ilyas. The learned Deputy Commissioner rejected this application and further removed the name of Muhammad Ilyas from the revenue records on the ground that he had already sold his share to respondents 2 and 3 and Babulal in the year 1947. The petitioner challenged this order before the Commissioner, Hyderabad Division. The learned Commissioner by order dated 14th June 1960 accepted the appeal and directed that the ‑/5/4 share in the disputed land should be restored to the petitioner. Respondents 2 and 3 challenged this order in Revision No. 11 of 1959‑60 before the Board of Revenue, West Pakistan. Mr. Nasir Ahmad by an order dated the 2nd of January 1961 accepted the revision and held that 2/3rds of the ‑/5/4 share of Muhammad Ilyas should stand In the names of respondents 2 and 3 and the rest belonging to Babulal, who admittedly is an evacuee, should be shown as evacuee property. The petitioner seeks to challenge this order in this writ petition and has prayed for a writ of certiorari. The petitioner has attacked the impugned order on two fold grounds: firstly, that the learned Member of the Board of Revenue had no jurisdiction to express any opinion about the evacuee nature of the property in dispute ; and secondly, that the Board of Revenue should not have interfered with the order of the Commissioner, Hyderabad Division, as the sale In favour of the petitioner was supported by a registered sale‑deed. After hearing the learned counsel for the parties we have come to the conclusion that this writ petition must fail. As regards the first objection, it will be observed that Muhammad Ilyas, respondent No. 4, sold his share under a registered sale deed dated the 21st of April 1947 to Tikamdas and Kishanchand, respondents 2 and 3, and one Babulal in equal shares. Admittedly Tikamdas and Kishanchand are non‑evacuees whereas Babulal is an evacuee. This fact was admitted by the parties before the revisional authority in the above‑mentioned proceedings. It was in this context that the learned Member of the Board of Revenue while accepting the revision directed that the names of Tikamdas and Kishanchand be mutated in respect of 2/3rd share out of the ‑/5/4 share of Muhammad Ilyas and the remaining 1/3rd share belonging to Babulal should be mentioned as evacuee property. Thus, the learned Member of the Board of Revenue made a direction in respect of a question about which there was no dispute between the parties. It Is not dispute in this writ petition that this observation of the learned Member of the Board of Revenue is against the admitted facts of the case. In these circumstances no objection can be taken to the direction given by the Board of Revenue in this behalf in the impugned order. This direction is not in the nature of adjudicating whether the property in dispute is evacuee property or not but is in the nature of recording a fact which resulted from the admission of the parties. It is therefore quite obvious that the objection of the petitioner in this behalf is without any merit. Mr. Nusrat, the learned counsel for the petitioner, on the second objection urged that the Board of Revenue in the revision before it should not have decided the question of fact whether Muhammad Ilyas validly transferred the Re. 0‑5‑4 share of Muhammad Ilyas under a sale‑deed dated the 31st of August 1957. According to the learned counsel the revisional authority on the facts of this case should have directed res pondents 2 and 3 to file a civil suit for a declaration of their rights. It was admitted at the Bar that the learned Member of the Board of Revenue was considering the dispute raised before him under section 211 of the Bombay Land Revenue Code. The material portion of the section with which we are concerned runs as under: "The Provincial Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the pro ceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer . . . . ." Before considering the power of the Provincial Government exercisable under the above provision of law, it may be mentioned that disputes in respect of acquisition of rights and mutations In the record of rights under the Bombay Land Revenue Code are adjudicated by the subordinate Revenue Officers under the provisions of section 135 (B) to section 135 (J). According to the provisions of section 135‑J an entry in the record‑of‑rights, and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Section 135‑L (2) provides that the correctness of the entries in the record‑of‑rights and register of mutations shall be inquired into and the particulars thereof revised, by such Revenue Officers and in such manner and to such extent and subject to such appeal as the Provincial Government may from time to time by rules prescribe in this behalf. It was on the basis of these provisions that the matter was disposed of m the first instance by the Deputy Commissioner of Thatta and on appeal by the Commissioner of Hyderabad Division. But as held by their Lordships of the Privy Council in Gangabai and others v. Fakirgowda Somaypagowda Desai and others (AIR 1930 PC 93) the entries in the record‑of‑rights are not conclusive evidence of the facts recorded therein and such entries shall be presumed to be true only until the contrary is proved in a Civil Court. Thus it would be seen that in cases where any party is aggrieved by the order of the Revenue Authorities it is open to him to challenge the mutation proceedings on the regular side of the Civil Court. As already stated the learned Member of the Board of Revenue exercised the revisional jurisdiction in respect of disputes between the parties under section 211 of the Bombay Land Revenue Code. The scope of the power of the revisional authority under this provision of law was considered by their Lordships of the Privy Council in Secretary of State v. Anant Krishnaji Nulkar and others (A I R 1934 P C 9). The Privy Council in that case held that the amplitude of the powers conferred on the Com missioner by that section is striking. Under the later part of the section the Provincial Government is competent to modify, annul or reverse the order of subordinate Revenue Authorities. Thus the learned Member of the Board of Revenue is empowered under this provision of law to disturb the finding of facts also. A perusal of the impugned order will show that the learned Member of the Board of Revenue after going through the facts of the case came to the conclusion that respondent No. 4 having sold his share in the property in dispute in April 1947 to respondents 2 and 3 and one Babulal the subsequent sale In favour of the petitioner in 1957 could not be recognised. The learned Member further held that the Special Mukhtiarkar In 1952 was not justified to restore the share of Muhammad Ilyas to him because he was not an evacuee and the share disposed of by him should have remained in the name of the purchasers. Mr. Nusrat, the learned counsel for the petitioner contended that as Muhammad Ilyas, respondent No. 4, had denied the sale -deed alleged to have been executed by him in April 1947 it was not open to the Revenue Authorities to rely on the alleged sale and the learned Member of the Board of Revenue should have directed respondents Nos. 2 and 3 to establish their right in a Civil Court. This contention is not well‑founded. It was open to the learned Member of the Board of Revenue to accept the transaction supported by a registered sale‑deed as against the oral statement made by Muhammad Ilyas in subsequent pro ceedings. There is nothing wrong in it. This being a finding of fact this Court in the exercise ‑of its extraordinary jurisdiction cannot interfere unless the finding is absolutely perverse. There is yet another aspect of the case. The order passed by the learned Member of the Board of Revenue is not final and conclusive. It is subject to the decision of the Civil Court if the parties choose to agitate the points decided in the impugned order on the regular side. In such matters also this Court seldom interferes. In these circumstances we do not consider It a fit case for interference on the extraordinary writ jurisdiction of this Court. It is open to the petitioner to take the dispute between the parties to the Civil Court and get the question of fact involved in this matter decided by a Court of competent jurisdiction. Accordingly we see no ground to interfere in this matter. In the result the petition is dismissed with costs. K. B. A. Petition dismissed.