1984 PLP 1167 (CLC)

Ss. 172 & 53‑Entries in Khasra Girdawari, correction of‑Cor rection of entries in Khasra‑Girdawari during pendency of civil suit- Collector, held, competent authority to dispose of such matter- Order of Additional Commissioner, reversing order of Collector on ground that he cannot interfere during pendency of civil suit, set aside and case remanded to him for decision of appeal on merits. Muhammad Safdar Ali Iqbal v. Sher Muhammad and others 1980 C L C 520 and Mst. Ghulam Khatoon v. Muhammad Yaqu6 and another P L D 1964 Lab. 324 ref. The facts are that the petitioners purchased the land in dispute from one Mst. Asghari Begum. Respondents Nos. 3 to 9 filed a suit to pre‑empt this sale. The petitioners resisted the suit and put up the defence that the land comprised in their tenancy and thus the respondents were not possess ed of superior right of pre‑emption. They also moved an application before the Collector, for correction of the entries in the Khasra‑Girdawari on the ground that during the period from Kharif, 1977 to Rabi, 1978, the land was under their joint cultivation but the Patwari in collusion with respondents showed each of the petitioners as in individual cul tivation thereof. On the report of the Tehsildar, the Collector by his order dated 20‑12‑1980 allowed the application. However, in appeal filed by the respondents, the Additional Commissioner (Revenue) relying on Muhammad Safdar Ali Iqbal v. Sher Muhammad and others (1980 C L C 520) took the view that the Collector could not interfere with the entries of the Khasra‑Girdawari register, during the pendency of the civil suit. He thus accepted the appeal on 1‑9‑1‑

981. This order was confirmed by the learned Board of Revenue and the petitioner's revision dismissed, vide order dated 20‑9‑1982. Both these orders have been called in question.

2. I have heard the learned counsel for the parties. It is argued on behalf of the petitioners that the judgment relied upon by the respondents was challenged in Civil Miscellaneous Petition 786/79 and its operation suspended by the Supreme Court by its order dated 7‑1‑1980. He also referred to section 172 of the Land Revenue Act, 1967, to submit that the jurisdiction of the Civil Court to order correction of the entries in the Khasra‑Girdawari Register is ousted and the Revenue Officer alone is com petent to pass an order in the matter. It has also been argued that the Addl. Commissioner's order amounts to refusal to exercise jurisdiction lawfully vesting in him and the learned Member; Board of Revenue, erred in concurring with it. On the question of Civil Court's jurisdiction, the learned counsel heavily relied upon Mst. Ghulam Khatoon v. Muhammad Yaqub and another (P L D 1964 Lah. 324).

3. In reply, the respondent's learned counsel supported the impugned order and urged that under para. 99 of the Land Records Manual, the Collector can order the correction of record only if there is some clerical error and patent mistakes in the Khasra‑Girdawari register. In his sub mission as there was neither any clerical error nor any patent mistake, the Collector's order dated 20‑12‑1980 was utterly illegal and thus there is no justification for its restoration through writ jurisdiction.

4. In Muhammad Safdar Iqbal's case, it has been held that the pro ceedings in the pre‑emption suit are judicial in nature whereas the correction of entries in Khasra‑Girdawari is an administrative act. The practice of correcting such entries by the revenue‑officer during the pendency of the pre‑emption suits was thus deprecated. It is to be seen, as pointed out by the petitioners learned counsel, the operation of this judgment has been suspended by the Supreme Court. This decision, there fore, loses much of its persuasive value. Clause (vi) of subsection (2) of section 172 of the Land Revenue Act, expressly prohibits the exercise .of jurisdiction by a Civil Court in respect of correction of entries in the record of rights or periodical record or registers of mutations. The record of Khasra‑Girdawari can be categorised as periodical record. No doubt section 53 of the Land Revenue Act, provides that party person aggrieved by as entry in such periodical record., may institute a suit for declaration of his rights under Specific Relief Act. This section, however, embodies only an enabling provision. Furthermore, the pre‑emption suit cannot be equated with a declaratory suit as envisaged by section 53 of the Land Revenue Act. In the precedent referred to by the petitioner's learned counsel, a learned Single Judge of this Court took the view that the Collector is a proper authority to dispose of the matter relating to the entries in the Khasra‑Girdawari.

5. I find much force in the submission of the petitioner's learned counsel and feel inclined to hold that the Addl. Commissioner was bound to decide the petitioner's appeal on merits but he failed to exercise the jurisdiction conferred on him by law. The order passed by the learned Member, Board of Revenue affirming the order of the appellate authority suffers from the same infirmity. As I propose to send back this case in the Tribunal below I have refrained from commenting upon the argument of the respondents' learned counsel founded on para. 99 of the Land Records Manual.

6. For the foregoing reasons this writ petition is accepted, the impugned order declared to have been gassed without lawful authority. Consequently the respondents'‑ appeal before the Addl. Commissioner (Revenue) shall be treated as pending and disposed' of afresh after hearing both the parties, in accordance with law. The parties are left to bear their own costs. M.A.K Petition accepted.