P L D 1962 W (PLP)

The facts of this revision petition briefly are as follows: ‑ One Khan Khel a Malik of Mallagheri tribe of Khyber Agency died on 21‑8‑1957 without issue in his. village which is situated In the Tribal Area. The Revenue Officer decided the mutation of his inheritance in favour of his three widows and two daughters of his deceased sister ; the shares allotted to them being in accordance with the Shariat. An appeal was preferred by the respondents to the Collector on the ground that they were the heirs of two other deceased sisters of Khan Khel and were also entitled to succeed. The Collector declined to interfere but on revision the learned Additional Commissioner directed that the matter be reopened and a fresh decision arrived at on merits. The reason which prompted him to intervene was that the genealogical table of Khan Khel originally prepared by the Political Agent, Khyber on the strength of which the mutation had been decided was not available on the record of the case though a certified copy of it prepared by the Revenue Authorities was there. He felt that this fact laid the case open to suspicion and he requested the Political Agent to go into the matter and prepare the genealogical table of Khan Khel afresh. The peti tioners in whose favour the mutation was originally decided have come up in second revision. It may be mentioned here that the new genealogical table prepared by the Political authorities has been received by me. It indicates that the respondents are the successors of two other predeceased sisters of Khan Khel and on that ground seem to be entitled to succeed. The statements of the elders of the tribe recorded by the Political Authorities, however, do not corroborate the genealogical table. Subedar Amin Khan stated as follows:‑ " . Khan Khel's sisters pre‑deceased Khan Khel. As regards the other claimants on the strength of inheritance I cannot verify whether they are entitled to inheritance or not ". An identical statement was made by Jubbar Khan, Rana Khan and Subedar Major Sabir the other elders of the tribe. Kh. Abdur Rahim for the petitioners has relied on Shrimah Soshila Devi v. Shrimati Parvati and others P L D 1950 Pb. (Rev.) 253 and Kartar Singh v. Fiaz Ahmad P L D 1950 Pb. (Rev.) 576 and contended that the case should not have been re‑opened in revision by the learned additional Commis sioner, as in Kartar Singh v. Fiaz Ahmad, Alan Mitchell F. C. held that " a concurrent finding on a question of fact by two authorities below cannot be called into question by a revising authority ". With great respect for the view expressed by an eminent predecessor of mine I would only say that this is a rule of practice followed by Financial Com missioners and that there has been no legal restriction under the existing laws on the powers of revising authorities. In the later ruling Shrimati Soshila Devi v. Shrimati Parvati Devi Abdul Aziz F. C. another eminent Financial Commissioner has referred to another very solutary rule of practice observed by Financial Commissioners namely that " when the dispute between the parties is of a judicial nature the Financial Com missioner does not interfere in revision except in cases where such a course is justified by the provisions contained in section 115 of the C. P. C.". A similar view has been expressed in an earlier reported case Chander Parkash v. Lakhshmi Narain P L D 1950 Ph. (Rev.) 77 by Miles Irving F. C. who observed that " I have ruled that although my power of revision under the Land Revenue Act is unlimited, I will not use it in case of a judicial nature between parties except in cases covered by section 115, C. P. C. It is absurd that in disputes which only deal with presumptions greater latitude should be given than in disputes governing rights." I am in entire agreement with the views expressed by Miles Irving F. C., and this has also been the practice consistently followed by Financial Commissioners over a large number of years. The dispute under consideration between the parties is judicial in character and even the report now received from the Political Agent does not definitely support the genealogical table relied on by the respondents. I would in these circumstances accept the revision petition, set aside the order passed by the learned Additional Commissioner and restore that of the Assistant Collector 1st Grade, passed on Mutation No.

810. A. H. Petition accepted.