2017 PLP 106 (CLCN)

FAISAL ZAMAN KHAN, J.

Through this petition order dated 03.03.2016 passed by respondent No.1 in R.O.R. No.1096/2015 has been assailed, whereby, the order passed by Additional Commissioner (Revenue), Gujranwala Division Gujranwala has been set aside.

2. Succinctly, the facts of the case are that a suit for pre-emption regarding land measuring 11-Kanals 14-Marlas situated in Phalwari, Tehsil Shakargarh (Property in dispute) was instituted by Nadir Ali, predecessor-in-interest of the petitioner which was decreed vide judgment and decree dated 27.04.1983. In pursuance thereof requisite amount was deposited with the treasury, whereafter, possession of the property in dispute was handed over to the petitioner. After the demise of Nadir Ali (decree holder), petitioner when approached the revenue authorities for incorporation of her name in the revenue record, it surfaced that the afore-noted decree has not been incorporated in the revenue record. For doing the needful, an application was filed by the petitioner before respondent No. 2, who declined the same vide order dated 20.01.2015. Feeling aggrieved petitioner preferred an appeal before the Additional Commissioner (Revenue), Gujranwala Division Gujranwala, which was accepted and a direction was issued to the revenue authorities to do the needful. Feeling aggrieved, respondents Nos.3 and 4 filed R.O.R.No.1096/2015, which was accepted through the impugned order, hence, this petition.

3. Learned counsel for the petitioner submits that in view of the judgment passed by the Honourable Supreme Court of Pakistan reported as Shahra and others v. Member, Board of Revenue, Punjab, and others (2004 SCMR 117) the revenue authorities were duty bound to incorporate a decree passed by the civil court of competent jurisdiction in the revenue record by way of entering mutation and for this purpose no execution petition was required to be filed. He while referring to the impugned order further submits that respondent No.1 erred in law in refusing the said relief.

4. Replying to the above, learned counsel for the respondents Nos.3 and 4 submits that they are bona fide purchasers of a part of property in dispute sold to them by the legal heirs of the original vendor therefore petitioner needs to approach the civil court of competent jurisdiction for the redressal of her grievance.

5. Learned Law Officer supports the impugned order.

6. Arguments heard. Record perused.

7. The only question requiring determination by this Court is that whether or not a decree passed by the civil court of competent jurisdiction could be incorporated in the revenue record without resorting to the execution proceedings. This question has been put to rest by the Honourable Supreme Court of Pakistan in a judgment reported as Ali Ahmad and another v. Muhammad Fazal and another (1972 SCMR 322), operative part of which is reproduced as under: "In support of the petition, Raja Said Akbar Khan, learned counsel for the petitioners, has contended that as the decree was not executed for six years, the Revenue authorities had no jurisdiction to sanction mutation and the Member, Board of Revenue and the other authorities were perfectly justified in refusing to do so. The contention of the learned counsel has not impressed us. A valid decree was passed in favour of respondent No.1 he became the owner of the property on payment of the purchase price on the 26th October, 1960, and became vested with right, interest and title in the land from that date. He was entitled to get the mutation effected on the basis of title decree. Simply because it has barred by time, it has not lost its utility. In our opinion, the view of the High Court is correct that the revenue authorities were under obligation to sanction mutation on the basis of the decree. It was next contended that the respondent has taken possession under a collusive decree from the tenants of the petitioners and that the order of the High Court is likely to affect the decision of the suit filed by the petitioners under section 9 of the Specific Relief Act. The apprehension of the petitioners is not well founded. The civil court will decide the suit on its own merit. There is no force in the petition. The petition is dismissed."

8. This view has further been followed by the Honourable Apex Court in a judgment reported as Allah Ditta v. Ghulam Muhammad and 3 others (2008 SCMR 102) in the following terms: "

4. The arguments of the learned counsel for the petitioner have no force and this petition has no merit. The Mutation in dispute No.283 dated 11.08.1976 was attested by the Assistant Collector 2nd Grade. In consequence of the Civil Court decree dated 20.07.1976, which was passed with the consent of the petitioner. The Revenue Authorities are bound to act under the decree. They cannot ignore the same on any ground whatever. Similarly, the Land Reforms Authorities also cannot sit over the judgment and decree passed by a Civil Court. Respondent No.2, therefore, had no lawful authority to issue directions for ignoring the Civil Court decree and quashing the above said mutation in dispute, which was sanctioned only in pursuance of the said decree." In Abdul Hameed and others v. Member (Revenue), Board of Revenue and others (2005 SCMR 1617) it has been held that; "

6. The careful examination of the above subsections would show that it is essential for the Revenue Officer to inquire into the correctness of all entries in the register of mutation except in case of decree of Court. The Revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by competent Court and in case of failure, the concerned officials can be held guilty of contempt of Court, which is gross misconduct." In case of "Shahra and others" cited supra the Honourable Apex Court has held that:- "

5. The objection mutation could only be sanction on the order of the Execution Court also does not have any legal basis. On the deposit of the pre-emption money as ordered in the pre-emption decree according to well-settled law, the pre-emptor/decree-holder was vested with full ownership rights of the land subject-matter of the suit of pre-emption about which decree was passed, therefore, as regards sanction of mutation, the same could be made on the basis of decree without resorting to Executing Court under the revenue laws." (Emphasis supplied) The afore-referred view of the Honourable Apex Court has further been followed by this Court in judgments reported as Munshi Muhammad and others v. District Officer (Revenue) and 2 others (2015 YLR 2136), Nazir Ahmad and 6 others v. Ghulam Mustafa and 20 others (2010 MLD 89) and Munshi Muhammad through L.Rs. and others v. District Officer (Revenue), Gujranwala and 2 others (2009 CLC 1285).

9. By placing the law laid down by the Honourable Supreme Court of Pakistan in juxtaposition with the facts of the instant case, it is abundantly clear that the finding rendered by respondent No.1 qua the non-incorporation of the judgment and decree of the civil court in the revenue record is erroneous. The revenue hierarchy was duty bound to incorporate the decree in the revenue record especially so when it is not disputed by either of the parties that in furtherance of judgment and decree dated 27.04.1983 passed by the learned Civil Judge, Shakargarh in favour of the predecessor of the petitioner the requisite amount was deposited with the treasury, whereupon, possession of the property in dispute was handed over to the petitioner, which is fortified by the finding rendered by respondent No.1 in the impugned order (see Paragraph-5).

10. In the afore-referred circumstances the revenue hierarchy could not have directed the petitioner to approach the learned executing court for execution of the decree in favour of her predecessor especially so when the decree of pre-emption has been acted upon by way of deposit of requisite amount as a consequence to which possession has been handed over to the petitioner, therefore, there was no legal impediment in the way of the revenue hierarchy to implement the said decree by way of entering mutation in the revenue record and the refusal by them is a clear negation of the judgments of the Honourable Apex Court cited supra.

11. The revenue authority could have directed the petitioner to approach the learned executing court provided some part of the decree was not fulfilled, however, in the case in hand since all the requisites of the decree were completed and its mere incorporation in the revenue record was required, therefore, the view taken by respondent No.1 was incorrect.

12. In view of the above, this petition is accepted as sequel to which the impugned order is set aside. A direction is issued to respondent No.2 to incorporate the decree in the revenue record.

13. As regards respondents Nos.3 and 4 that they are bona fide purchasers for a valuable consideration, they can get their rights determined from the civil court of competent jurisdiction. MQ/T-4/L Petition accepted.