2011 PLP 638 (CLC)

SHER MUHAMMAD KHAN, J.

Facts as narrated in the writ petition by petitioners are that petitioner No.2 is owner in possession of land measuring 2 Kanals, 5 Marlas in Khasra No.3569 entered in Khata No.798 situated in Abadi Deh Mauza Kulachi Sharqi D.I. Khan, on the strength of registered deed No.10 attested on 14-2-1940 while petitioner No.1, real mother of petitioner No.2 is also owner in possession to the extent of 11 Marlas through inheritance in the same Khasra number vide Mutation No.1399 attested on 30-6-1986.

2. Respondent No.8 through respondent No.9, his son, submitted an application to respondent No.3 (DOR/Collector, D.I. Khan) for correction of entries in the revenue record vide application dated 31-7-2004; which was processed and was yet to be decided finally, in the meanwhile respondent No.9 approached respondent No.1 through application, praying therein to direct respondent No.3 for expeditious disposal of his application. The application of respondent No.9 was marked to respondent No.3 vide letter No.16763 dated 26-7-2005 for necessary action and report within a week. Respondent No.3, in response to the order passed by respondent No.1 submitted his report on 21-6-2006 suggesting therein:

"One Muhammad Tariq Javed son of Muhammad Jan resident of Kulachi has submitted an application for correction in revenue record pertaining to record of right 1969-70. Village Kulachi Sharqi Tehsil Kulachi, D.I. Khan. As per revenue record year of 1960-61 area of 4 Kanals and 1 Marla out of Khasra No.2193 (under dispute) has been shown in the name of Shahbaz Khan son of Umar Khan, Samandar Khan son of Bakhtiar Khan caste Khader Khel through Jain Khan son of Karim Khan tenant at will (photocopy attached as Annexure-"A"). During settlement operation 1965-66 the Khasra No.3569 new (2193 old) has been shown as (ﻤﻗﺑﻭﺑﺎﺸﻧﺩﮜﺎﻥﺩﻴﻬﻪ) in which the Samandar Khan grandfather of Tariq Javed applicant is also included being permanent inhabitant of the vicinity (photocopy attached as Annexure "B"). During the preparation of Jamabandi 1969-70 the Abdur Rahman son of Ramzan has included as tenant upon 4 Kanals, 10 Marlas out of total area 61 Kanals and 8 Marlas of Khasra No.3569. The remaining area 56 Kanals, 18 Marlas has been shown in the name of (ﻤﻗﺑﻭﺑﺎﺸﻧﺩﮜﺎﻥﺩﻴﻬﻪ) as per incorporation of entries of Khasra Girdawari (ﭜﺴﻠﻰ) of (ﻤﻗﺑﻭﺑﺎﺸﻧﺩﮜﺎﻥﺩﻴﻬﻪ) photocopy attached Annexure "C ". During preparation of Jamabandi 1981-82 the total area of Khasra No.3569 has been shown as 56 Kanals, 18 Marlas in the name of (ﻤﻗﺑﻭﺑﺎﺸﻧﺩﮜﺎﻥﺩﻴﻬﻪ) while 1 Kanal, 14 Marlas in the name of Abdur Rahman son of Ramzan and 2 Kanals, 16 Marlas in the name of Nasrullah Khan son of Hassan Khan while the entry of Shahbaz Khan and Umar Khan will also remain intact as "Magboza Bashindagan" include all old entries. The above entries are still continuing in the revenue record. The applicant request regarding exclusion of entries of Abdur Rahman and Nasrullah Khan from Khasra No.3569 which could not be made without proper civil adjudication, while the claim of Abdur Rahman and Nasrullah upon .specification (if any) in the Khasra No.3569 could not be confirmed from revenue record in hand as nothing has been mentioned regarding specific possession." That the applicant request regarding excluding of entries of Abdur Rahman and Nasrullah Khan from the Khasra No.3569 could not be made without proper civil adjudication while the claim of Abdur Rahman and Nasrullah upon specific portion (if any) in this Khasra number could not be confirmed from the revenue record in hand as nothing has been mentioned regarding specific possession. It was suggested that it will be appropriate to direct both the parties to seek their remedy in proper Court of law.

3. On receiving information about the proceedings before respondent No.1 on the application of respondent No.8, petitioner submitted an application on 25-7-2006 for dismissal of application filed by respondent No.8 but per averments of the writ petition, petitioners were not provided opportunity of hearing and were condemned unheard. Respondent No.1 passed an executive order on 5-8-2006, addressed to respondent No.3 directing him to correct the revenue record in favour of legal heirs of Muhammad Tariq Javed respondent No.9 under intimation to his office immediately and to send a report for perusal of respondent No.1.

4. Respondent No.3, being subordinate of respondent No.1, without applying his independent mind complied with the order of his superior and directed respondent No.4 to correct the revenue record in favour of legal heirs of respondent No.9. Respondent No.4 onward passed the command of respondent No.1 to respondents Nos.5 to 7, the field staff, for compliance, who changed the revenue record as per directions of respondent No.1 and the compliance report was also sent back.

5. Petitioners on attaining knowledge of the same proceedings from their personal sources, submitted review petition to respondent No.1 but it too was dismissed on 15-3-2007, without providing opportunity of hearing on the grounds that the correction of the entry in the revenue record in respect of Khasra No.3569 has already been made as per direction of my predecessor in office issued on 5-8-2006, which has been implemented as per report of Tehsildar Kulachi, therefore the instant review petition has become infractuous, therefore filed.

6. The petitioners are aggrieved with the above mentioned proceedings conducted and orders passed by respondents Nos.1 to 7, therefore have approached this Court through the instant constitutional petition praying therein that the entire proceedings conducted and orders passed by respondents Nos.1 to 7 be declared illegal, void, without jurisdiction, without lawful authority and of no legal effects upon their rights.

7. Learned counsel for the petitioners argued that the petitioners were condemned unheard and the golden principle of audi alterm partem was violated by respondents Nos.1 to

7. It was also argued that long standing entries in the revenue record not to be altered in summary manner through mutation. It was also contended that Collector cannot allow correction of long standing entries in revenue record through review of mutation and elaborate inquiry and evidence could only be adjudicated upon by Civil Courts under section 53 of the Land Revenue Act, 1967.

8. On the other hand, learned counsel for respondents argued that previously Khasra No.2193 measuring 137 Kanals, 6 Marlas, now Khasra No.3569 measuring 61 Kanals, 8 Marlas was in ownership and possession of the predecessors of respondents Nos.8 and 9 since 1927-28 and the same entry in the revenue record was continuously maintained intact till, settlement of 1965-66. In the years 1969-70 one Abdur Rahman with collusion of the revenue staff, succeeded to enter his name in column of cultivation of the revenue record, who sold his rights in the year 1981-82 in favour of Nasrullah son of Hassan Khan, husband of petitioner No.1. He further elaborated that respondent No.9 submitted an application on 31-7-2004 to respondent No.3 for correction of the revenue entries which was duly processed but was not finalized for the reason that respondent No.3 felt that it is beyond his jurisdiction, which necessitated submitting application to respondent No.1, for early decision on his application. Detail oral and written arguments were advanced, giving complete factual background of the dispute for explaining their point of view. It was also argued that under section 163 of the Land Revenue Act, 1967 respondent No.1 has unrestricted and unbridled power to change and convert the revenue record, maintained by the lower functionaries.

9. We have given our deep thoughts to the point of view put forward by learned counsels of the parties and have also thrashed out the documents placed on file.

10. Revenue Officers, in terms of section 172(2) (iv) of the West Pakistan Land Revenue Act, 1967, although are empowered to order correction of entry in record of rights, periodical record or register of mutation, yet such power is restricted to correction of entry. which is patently wrong but could not exercise this power with regard to entry which involved question of rights determinable by Civil Court within scope of section 53 of West 'Pakistan Land Revenue Act, 1967 or entry which is long standing.

11. Section 44 of the Act (ibid) relates to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI of the Act (ibid), relating to record of rights and periodical record. But once the inquiry was made or the entries recorded in the revenue record, a presumption of truth is attached to it under section 52 of the Act ibid until the contrary was proved or the new entries were substituted. Therefore, to dislodge this presumption a remedy is provided under section 53 of the said Act which provides that if any person, considers himself aggrieved by an entry in the record of rights or in periodical record as to any right of which he is in possession, he may institute a suit for declaration of his rights under section 42 of the Specific Relief Act, 1877.

12. Keeping in view the above mentioned legal aspects and intricate questions of title involved in the controversy, which could only be decided after recording pro and contra evidence by competent Civil Court. We do not feel it advisable to discuss merits and demerits of the entries, prevailing before the impugned orders in the revenue record.

13. We are only concerned with the proceedings conducted by respondents Nos.1 to 7 on the application of respondents Nos.8 and 9 and to see that whether it was carried out in accordance with law or not and whether proper opportunity of hearing was afforded to petitioners or not.

14. Respondent No.1 did not care, while passing the impugned order, to follow the procedure provided by Land Revenue Act, 1967 and Rules framed thereunder. The functions and powers vested in him are for the purpose to supervise, monitor and streamline the performance of his subordinate hierarchy. He is not supposed to grab or usurp the powers of other functionaries, bestowed upon them by the Act (ibid).

15. Even under section 163 of the Act (ibid), he has to pass order after issuing notice and providing opportunities of hearing to the other side. The impugned order of respondent No.1 by any stretch of imagination cannot be considered as judicial order. It is sketchy, non-speaking and without reason. It has been passed without giving opportunity of audience to the other side and through this order has deprived Purda observing lady of her valuable rights.

16. Respondent No.1 has also snatched statutory rights of appeal and revision of the petitioners. Changing long standing revenue entries, through such like executive orders, by the highest hierarchy of the Revenue Department without any feed back, report, recommendations from the field staff, leaves no doubt about the illegality, un-justifiability and incorrectness of the order. The August Supreme Court in the case of Nawab Khan and others v. Saith Karim Khan and others 1997 SCMR 1840 has ruled that contents of record of rights which also includes settlement record used to be followed with more or less exactness by settlement officers, which includes Wajab-ul-Arz, Jamabandi and portion of Shajr-i-Nasab or genealogical tree of proprietors, presumption of truth is attached to record of rights generally. Very strong evidence is required to rebut presumption of correctness attached to first settlement record of an area.

17. As mentioned above the factual controversy between the parties requires thorough probe through recording of evidence from both the sides and deciding the dispute between the parties in hasty and summary manner is not only illegal, unlawful but also injustice with the parties.

18. We allow the instant writ petition and declare the entire proceedings concluded by respondents Nos. 1 to 7 and the impugned orders passed by respondents Nos.1 and 3 illegal, arbitrary, without lawful authority and of no legal effects. H.B.T./101/P Petition allowed.