2015 PLP 424 (CLC)

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

This revision petition has been filed against order dated 17-6-2010, passed by learned Executive District Officer (Revenue), Multan, whereby appeal of the present respondents Mst. Fazlan Mai etc. the present respondents was accepted.

2. Arguments heard and record perused.

3. Learned counsel for the petitioners Muhammad Akram etc. argued that Allah Yar son of Shah Muhammad was owner of landing failling in Khewat No.70, measuring 100 kanals, situated in Chak No.14/F, Tehsil and District, Multan who gifted the said property to the petitioners (who are real sons of Allah Yar) through mutation No.1010, dated 16-2-2006. The said Allah Yar recorded his statement before Revenue Officer on 10-2-2006 in open assembly in presence of parties as well as witnesses. He thumb-marked on the mutation in presence of witnesses and produced his national identity card. But, mutation fee was not deposited. Therefore, the said mutation was sanctioned on 16-2-2006. The respondents filed a civil Suit for permanent injunction against the petitioner. The respondents Nos.3 to 6 got recorded their statements before the civil court acknowledging the gift in favour of the petitioners. However, the suit was dismissed on 9-4-2008. Then the respondent No.1 filed an appeal before learned Deputy District Officer (Revenue) against the Mutation No.1010 which was rejected on 17-1-2009. Respondent No.1 filed an appeal before learned Executive District Officer (Revenue), Multan, who illegally accepted the appeal vide order dated 17-1-1990. The impugned order is the result of non-reading and misreading of the record. The contention of the petitioner was not appreciated by learned lower court. The matter was decided by the learned civil court, therefore, learned Executive District Officer (Revenue), Multan, was not competent to pass the impugned order. The allegation about the fraud cannot be determined and thrashed out by the revenue courts, therefore, the competent court in such cases is the civil court. The mutation was sanctioned in open assembly after fulfilment of codal formalities. Finally, it was prayed that the revision petition may be accepted.

4. Learned counsel for respondents, Mst. Fazlan Mai etc. contended that Allah Yar predecessor-in-interest of the parties was owner of 100-kanals of land who died on 11-2-2006. The deceased left two sons and 5 daughters alive. The petitioners in connivance with the patwari halqa managed and manipulated the attestation of Mutation No.1010, dated 16-2-2006, whereby Muhammad Akram etc. present petitioners deprived the respondents of their legal and lawful right of inheritance. Appeal of the respondent was dismissed by learned Deputy District Officer (Revenue). But learned Executive District Officer (Revenue), Multan, accepted appeal through his well reasoned and justified order dated 17-6-2010. Mutation No.1010 was sanctioned after the death of father of the parties. Through the impugned mutation, the respondents were deprived of their lawful rights of inheritance, which is against the settled principle of law, as no one can be deprived of his legal and lawful right. The father of the parties died on 11-2-2006 and the disputed mutation was sanctioned on 6-2-2006, which was, later on, changed as 10-2-2006. The mutation was to be sanctioned in open assembly. But, it was secretly sanctioned. Thumb-impressions of the dead person were affixed on the mutation. According to section 35 of the Muhammadan Law, 1/3rd of the property can be transferred to marz-ul-wafat. But in the instant case, father of the parties had died prior to the sanction of mutation. The appeal of the respondents was rightly accepted by learned Executive District Officer (Revenue), Multan, whereby the disputed Mutation No.1010 was set aside through a justified order. While concluding the arguments, it was prayed that the revision petition may be dismissed.

5. I have considered the arguments of learned counsel for the parties and perused the record available in the case file including the impugned orders. Brief of the matter is that Allah Yar was father of the parties, who died on 11-2-2006. The deceased on 10-2-006 got entered Tamleek Mutation No.1010 in favour of the present petitioners through which land measuring 100-kanals situated in Chak No.14/F was transferred. Feeling aggrieved by the said transaction, the present respondents filed an appeal in the court of learned Deputy District Officer (Revenue), Saddar Multan, which was rejected vide order dated 17-1-2009. The operative part of the order is as under:

6. Feeling aggrieved by the order, Mst. Fazlan Mai etc. the present respondents preferred an appeal in the court of learned Executive District Officer (Revenue), Multan, which was accepted vide order dated 17-6-2010 and the said Mutation No.1010, dated 12-2-2006 was set aside. The operative part of the order is as under:

"I have heard the counsel of the parties and perused the record. It is evident from the record that land in dispute of the predecessor-in-interest was shown transferred in favour of respondents Nos.1 and 2 through Mutation No.1010 entered on 10-2-2006 and sanctioned on 16-2-2006 while the deceased died on 11-2-2006. This creates doubt regarding the authenticity of the mutation under consideration. The respondents Nos.3 to 7 before the civil court have lost their interest making compromise with respondents Nos.1 and 2 while the appellant has not made any such statement before the civil court. In this way, appellant is eligible to get her due share from the property of her deceased father. Moreover, at the time of attestation of mutation in question, the vendor was no more alive at that time rather was dead. The lower court in the impugned order has mentioned that the predecessor-in-interest of the parties himself got entered and attested the tamleek mutation on 16-2-2006 in favour of respondents Nos.1 and 2 which is against the facts because he had died on 11-2-2006. In view of aforementioned reasons, I accept the appeal to the extent of appellant only and set aside the impugned order dated 17-1-2009 and Mutation No.1010 dated 16-2-2006."

7. From the above, it appeared that the impugned mutation was recorded on 10-2-2006, just one day before the death of the vendor. Whereas the mutation was sanctioned on 16-2-2006, meaning thereby that at the time of sanction of mutation, the vendor was dead. The presence of vendor is mandatory before the concerned Revenue Office at the time of sanction as per section 42-A(7) of Land Revenue Act, 1967. In this case, it is established that the vendor was dead at the time of sanction of mutation. So, such mutation has been passed in violation of mandatory provisions of law and cannot sustain. Hence, the revision petition is dismissed and impugned order dated 17-6-2010, passed by learned Executive District Officer (Revenue), Multan, is upheld. HBT/3/Rev. Petition dismissed.