1993 PLP 618 (SCMR)

3. In the meantime Martial Law Regulation 64 had been enforced placing restrictions on ceiling limits and Nawab Muhammad Farid Khan being affected by it filed Form LC‑1 and LC‑I1 in which he did not retain any part of ht's land in Naryala and on the acceptance of his forms by the Deputy Land Commissioner, vide his order dated 6‑10‑1960, the land owned by him in village Naryala stood resumed to the Land Commix lion under the provision of Martial Law Regulation ibid. Mutation No.40 was attested on 1‑4‑1964 whereby the resumed land was mutated in the am he of Provincial Government through Land Commission. Since Nawab Muhammad Farid Khan and Muhammad Mir Ashraf Khan and others, petitioners herein, had been recorded as joint owners in the Revenue Record on the basis of Mutation No.36, the Land Commission vide File No.25ACM/INT decided on 5‑‑3‑1964 effected the partition of the joint property between the Land Commission and the petitioners, strictly in accordance with the procedure laid down in the Land Revenue Act for the partition of land, as is evident from the documents available at pages 197 to 219 of the paper book and Mutation No.41 was duly attested on the strength thereof. As a result of the partition referred to above and the mutation attested on its basis land measuring 1,529 Kanals 4 Marlas bearing Khasra Nos. 566, 574, 538, 683, 801, 803, 812, 813, 876, 912, 922, 923, 921, 920, 916, 845/2, 911 and 678/2 (including the suit land) was exclusively allotted to Muhammad Mir Ashraf Khan 17 shares, Muhammad Ayub Khan and Muhammad Sarwar Khan in equal share 25 shares, Muhammad Sher Afzal Khan 13 share, and Muhammad Younas Khan 31 shares sons of Mir Afzal Khan, appellants herein.

4. Faqir Muhammad and others, who apparently had no immediate interest in the suit land, filed a suit bearing No.308/1 of 1973 in the Court of Civil Judge, Abbottabad against the appellants seeking declaration that land bearing Khasra Nos.241, 245, 248, 252, 253, 254, 255, 239, 267, 801, 812, 893, 895, 813, 912, 923, 920, 911, 918, 919, 922, 921 and 983 measuring 926 Kanals was the ownership of Nawab Muhammad Farid Khan, was later on resumed by the Land Commission on the enforcement of Martial Law Regulation 64 and that Mutations Nos. 21, 22, 23, 24, 36, 40 and 41 alongwith orders of the officers of the Land Commission and the‑ orders issued by the Divisional Commissioner vide Letter No.1662 dated 18‑1‑1960 and the partition proceedings are wrong, based on fraud and collusion and ineffective on their rights and that they were entitled to the allotment of the same under the up gradation scheme. The copy of the plaint is on pages 270‑9 of the paper book. They later on withdrew from the suit and the same was dismissed vide order dated 14‑7‑1976.

5. During the pendency of the said suit they submitted an application dated 15‑1‑1976 to the Deputy Land Commissioner (page 283 of the paper book) agitating the same grounds mentioned in the plaint and alleged that Muhammad Mir Ashraf Khan and others appellants in collusion with the staff of the Land Reform Authorities had, through partition Mutation No.41 attested on 11‑9‑1964‑ managed to alienate the same in their favour and by committing fraud deprived the Government and the authorised department of the valuable forest standing on these khasra numbers. It was specifically admitted in para. 5 that the appellants in lieu of the said khasra Nos. allotted their Guzara Khors forest comprised in Khasra No.681 and others in the name of the Nawab of Amb which was very poor and the authorised department had declared it unfit. They prayed for the cancellation Mutation No.41 and entrustment of the suit land to the authorised department. The Forest Department in their comments (page 292 of the paper book) supported the contention of the applicants and the learned Deputy Land Commissioner vide his order dated 3‑1‑1978, held that fraud had been practiced in the attestation of the partition Mutation No.41 and by reviewing the previous proceedings declared the disputed property as the ownership of the authorised/Forest Department which had paid price of the same to the Land Commission. However, the learned Land Commissioner vide his detailed order dated 7‑6 -1979 disagreed with the order of the Deputy Land Commissioner and declared it as in excess of jurisdiction vested in him. The Chief Land Commissioner in the exercise of his revisional powers, vide his order dated 28‑11‑1979, set aside the orders of the Land Commissioner and restored that of the Deputy Land Commissioner. The appellants then invoked the Constitutional jurisdiction of the High Court through writ petition which too was dismissed through the impugned order.

6. We have heard Ch. Khalilur Rehman, Senior Advocate, for the appellants; Mr. M. Sardar Khan, Advocate-General for respondents 1 to 5; Mr. Muhammad Munir Peracha, Advocate, for the heirs of respondents 9 and 10; and have perused the record of the case with their assistance.

7. The learned counsel for the appellants argued with vehemence that the appellants were rightly recorded as co‑owners in the land measuring 2,454 Kanals 12 Marlas including the suit land through Mutation No.36 attested on 22‑9‑1963; that Nawab Muhammad Farid Khan being affected by Martial Law Regulation 64 surrendered his ownership rights in the estate of Naryala; that the Land Commission in the exercise of powers vested in them under the Land Reforms Rules effected a regular partition of the joint khata through partition file No.25‑ACM/INT attested on 5‑3‑1964 and allotted the suit land to the appellants as their exclusive ownership and the rest of the area of the joint khata was retained by the Land Commission as their exclusive ownership; that the aforesaid partition was given effect to in the Revenue Record vide Mutation No.41; that the Forest Department had included the suit land in their choice for forest purposes placed before the Land Commission but on coming to know of the change of ownership of the suit land through the partition proceedings referred to above, they made representation to the Land Commission but when the latter expressed their helplessness in the matter, the Forest Department withdrew from their proposal and ultimately informed the Deputy Land Commissioner, Hazara vide Conservator's Letter No.184 dated 10‑9‑1968 that Khasra Nos.801, 812, 813, 911, 912 and 922 (suit land) being the property of Khans of Naryala may be restored to them and the remaining Khasras Nos. may also be put to open auction as they are not fit for forest purposes; that Faqir Muhammad and others, respondents herein, had no right or interest in the suit land and therefore had no locus standi challenge the proceedings of the Land Commission which was a closed chapter; that the time of review had already expired long ago; that the Deputy Land Commissioner had no power to review his earlier orders; that the learned Land Commissioner rightly set at naught the orders of the Deputy Land Commissioner as without jurisdiction; that the impugned order of the learned Chief Land Commissioner that fraud had been committed by the appellants and any proceedings could be reviewed any time when fraud is detected was not attracted in the instant case as there was no proof of fraud committed by the appellants on the file; that the Forest Department was not only aware of the entire proceedings but had shown their grievance against it to the proper forums but without success and ultimately having withdrawn from their claim had no locus standi to join Faqir Muhammad and other applicants to undo the earlier orders of the Land Commission; and finally, that aforestated material facts were suppressed from the learned High Court and, in consequence, their impugned order suffers from misreading and non‑reading of evidence.

8. The learned counsel for the respondents, on the other hand, reiterated all those grounds which are mentioned in the order of the Deputy Land Commissioner and the Chief Land Commissioner and submitted that the appellants were not proved to be co‑sharers with the Nawab of Amb; that the entries of their names as co‑sharers in the Revenue Record were based on fraud and collusion; and that the resultant proceedings of partition by the Land Commission are of no legal effect. It was emphasised that fraud vitiates all solemn acts and any order secured through practising fraud can be revoked by the authority concerned any moment.

9. We have given our anxious consideration to the arguments of the learned counsel on either side and have carefully and minutely gone through the paper book which contains almost the entire material necessary for the disposal of the instant controversy between the parties.

10. As narrated in para.2 of this judgment, the erstwhile Government of West Pakistan accepted Nawab Muhammad Farid Khan, the original owner of the area, as owner vide Memo. No.LR.9/5‑58 dated 16‑4‑1959 and Guzara Khors and Seri Khors also as proprietor of the lands of which they were paying rent at the land revenue rates and regarding which lists were reportedly maintained by the District Office vide Letter No.LR.9/5‑88 dated 15‑7‑1989. On the basis of these two communications Mutation No.36 was attested on 25‑12‑1963 (page 168 of the paper book), It is worthwhile to clarify .at this juncture that this mutation does not exclusively pertain to the suit land but it includes other property as well, the total Khasra Nos. being 42 and total area 2,454 Kanals 12 Marlas and it was entered not on the request or instance of the appellants but under the direction of the Commissioner, Peshawar Division vide Letter No.1662/LR‑6(a)LR dated 18‑1‑1960 (page 112 of the paper book) addressed to the Deputy Commissioner, Hazara. This mutation once came up for consideration before the Revenue Officer on 22‑9‑1963 in the Jalsa‑i‑Aam in which Muhammad Ismaeel Khan agent of Nawab Muhammad Farid Khan, Muhammad Mir Ashraf Khan appellant, Irshad Muhammad Khan, Secretary and Muhammad Yousaf were present and all of them testified to the genuineness and correctness of the proposed change in the ownership column from the name of the Government. At that time, admittedly, Nawab Muhammad Farid Khan was the Nawab of Amb and village Naryala formed part of his State. He was in a position to say about the Guzara Khors and Seri Khors and the extent of their possession or control over part of his property. His attorney was present before the Revenue Officer in the Jalsa i‑Aam and certified the change of ownership in the proportion as per column 9 of the Mutation No.36 between Nawab Muhammad Farid Khan, Muhammad Mir Ahsraf Khan and other appellants, not only with respect to the suit land but a larger area comprised in Khewat No.l/118 of village Naryala. The mutation came up for consideration before the Revenue Officer twice, once on 22‑9‑1963 and subsequently on 25‑12‑1963 in the estate and nobody including the applicants Faqir Muhammad and others who claim to be beneficiaries of the surrendered land, raised any objection to the jointness of the property between Nawab Muhammad Farid Khan and Muhammad Mir Ashraf Khan and others‑appellants. This change was incorporated in the subsequent jamabandi 1963‑(4 (page 175 of the paper book) to which presumption of truth is attached and nobody tried to rebut this presumption through a regular suit under section 45 of the then Punjab Land Revenue Act, in force at that time. Thus, it is manifest that Mutation No.36 was entered and attested in the regular course of official duties by the concerned Revenue Officers and no fraud was practised upon them in the attestation thereof.

11. In the application filed by Faqir Muhammad Khan etc. neither the factum of appellants being Guzara Khors in village Naryala has been challenged nor entries in their name through Mutation No.36 have been specifically attacked, rather it is specifically mentioned in para.5 of the application that the appellants are owners of Khasra No.681 and others measuring 924 Kanals 8 Marlas which was, according to them, fraudulently placed in the ownership of Nawab of Amb as this forest was poor in quality and was declared as such by the Forest Department. They only challenged the vires of partition Mutation No.41 on the ground of collusion and fraud between the officials of Land Reforms as well of Forest Department. No details of fraud have been enumerated in the application. They even omitted to call in question the orders of the West Pakistan Government whereby Guzara Khors were brought at par with the proprietary owners and on the strength of their directive Mutation No.36 was attested by the revenue staff under the provisions of the Land Revenue Act. No fraud or collusion is attributed to the Revenue officers who attested Mutation No.36. Rather, on the other hand, the ownzrship of the appellants in Khasra No.681 and others measuring 924 Kanals 8 Marlas forming part of Khata No.l/118 of Jamabandi 1957‑58 (page 171 of the paper book) was specifically admitted. The ownership of the appellants in Khata No.l/118 is thus impliedly admitted even by the applicants and as a necessary corollary thereto their being Guzara Khors as well.

12. We tried to discover the connotation of Guzara Khor and Seri Khor but could not find any explanation available in the paper book. However, it was explained by both the learned counsel that Guzara Khors arc persons belonging to the family of Nawab of Amb while Seri Khors have no blood relationship with him. The list of Guzara Khors is available on page 115 of the paper book which includes the names of the appellants. The question whether they possessed specific field Nos. in Khata No.l/118 or had a joint share with Nawab Muhammad Farid Khan was essentially a matter between the Nawab and the appellants. Since the entire land comprised in Khata No.1/118 was recorded as ownership of Government and in the possession of Forest Department, the change of ownership was effected with the mutual consent and concurrence of the parties concerned; namely, the Government functionaries, Nawab Muhammad Farid Khan and the appellants. Apparently i here is no fraud or collusion because if the 'appellants had desired to get fertile area and Nawab Muhammad Farid Khan was agreeable, then they could conveniently get the suit land mutated in their names exclusively and the rest in the ownership of Nawab Muhammad Farid Khan for resumption by the Land Commission, but instead they showed it joint and took the risk of putting themselves at the mercy of Land Commission for partitioning the same according to their rules in which the Land Commission had dual capacity, one as a party to the partition and the other as a judge carrying out the partition. In the circumstances discussed above there was neither any allegation of fraud or collusion in the attestation of Mutation No.36 by the applicants/respondents F nor any proof thereof before the hierarchy of the officers of the Land Commission hence there was no justification for the review of earlier orders 1 which had attained finality, at such a belated stage.

13. The learned Chief Land Commissioner for the first time embarked upon the verification of the correctness of Mutation No.36 without there being any objection to it in the application filed 6y the applicants Faqir Muhammad and others and a decision by the lower forum viz., Deputy Land Commissioner and Land Commissioner and without specifically calling upon the persons affected thereby to show cause why the said mutation should not be annulled. He declared it as wrong, illegal, fraudulent and collusive mainly on the ground that Nawab Muhammad Farid Khan had already surrendered the land prior to the entry and attestation of Mutation No.36 and that he was not within his right to accept the appellants as co‑sharers with him in the land comprised in Khewat No.l/118. He was also influenced by the fact that the suit land being thick forest was valuable and the appellants must have practised fraud in getting themselves entered as joint owners in the suit land. Another factor which probably prevailed much with the learned Chief Land Commissioner was that the said forest had already been transferred to the Forest Department for valuable cash consideration and possession delivered to them on the spot. We are afraid, these reasoning are not supported by the facts of the case and in the light of the documents available on the paper book.

14. At the time of the submission of Form LC‑I and LC‑II the entire land of Naryala was entered as the ownership of the Government and correction, even in the name of Nawab Muhammad Farid Khan, had not been made as per direction of the West Pakistan Government vide orders referred to above. Consequently, he simply surrendered his ownership in Naryala estate without any specification of khasra numbers or areas. Even if he had done so that could not bind the appellants as they were not party to the Land Reforms proceedings. Much has been said above with regard to the entry and attestation of Mutation No.36. The entire area situated in Naryala appears to be under forest and consequently shown in possession of the Forest Department as the Government was recorded owner thereof on account of disturbances. The Forest Department themselves have not laid any independent claim to the disputed land besides the alleged purchase by them from the Land Commission. After the attestation of Mutation No.36 jointly in the names of Nawab Muhammad Farid Khan and appellants and the consequent partition of the joint property by the staff of the Land Commission strictly in accordance with the revenue rules and the provisions of section 51 of the Land Reforms Manual Vol.I, the Forest Department expressed their resentment to the revenue authorities as well as to the concerned officers of the Land Commission. In this respect necessary correspondence is available on the paper book. Vide memo. No.498 dated 17‑11‑1965 issued by Sub‑Division Forest Officer, Guzara Demarcation, Mansehra (page 239 of the paper book) on receipt of an application from the appellants about the allotment of the disputed land in their favour in the partition proceedings by the Land Commission made a reference to the higher authorities including Conservator of Forests who in their turn took up the matter with the functionaries of the Land Commission. Vide Letter No.815 dated 31‑8‑1966 (page 241 of the paper book) the Deputy Land Commissioner informed Sub‑Divisional Forest Officer Demarcation, Mansehra that the case was examined by him and it was found that the partition of the land had been properly carried out and therefore it stands good. The Sub‑Divisional ‑ Forest Officer was directed that since the appellants were not affected by the Regulation therefore the Forest Department should not exercise their choice for selection of the area under forest out of their share and directed them to furnish detailed report of the area to be selected by them in the entire district for onward communication to the Land Reforms Authorities. A detailed report on behalf of D.F.O. Guzara Demarcation Sub‑Division to the Conservator of Forests is available at page 242 where it is specifically mentioned that the charge of Khasra Nos.801 and others measuring 927 Kanals 2 Marlas (disputed land) was taken over on 20‑6‑1965 i.e. after the partition proceedings. In the end it was submitted by him that the Deputy Land Commissioner may be asked to allot them the suit land which was a good forest otherwise they should not take the other areas which are not at all suitable for. the Forest Department. This clearly implied that the suit land comprised in Khasra Nos.801 and others was good forest even before the attestation of the Mutations Nos.36 and 41, and that the Forest Department had not put in any labour to make it more valuable rather they had not even taken possession of the same before the impugned mutations. Another similar report dated 5‑8‑1967 on behalf of S.D.F.O. to Conservator of Forests is available on page 244 of the paper book and it is worthwhile to reproduce the relevant part thereof. "Now, according to the decision of the D.L. Commissioner, Hazara No.815/14‑LR, dated 31‑8‑1966, it has been made clear that the No. Khasras viz. 801, 812, 813, 911 and 922 are the property of Mir Ashraf etc. of village Naryala and they are not affected declarants and these No. Khs. were wrongly given to the Forest Department Resumed Land therefore the Forest Department has no claim over them. The only alternative left is either to demarcate the No. Khasras 681, 151, 247, 252, etc. etc. mentioned above which are unsuitable, or left to the Land Reform for their disposal according to the procedure. Kindly pass orders, so that compliance may be made." Later on, another letter dated 27‑5‑1968 was addressed to the Conservator of Forests wherein it was admitted that the suit land bearing Khasra Nos.801 etc. are excluded from the demarcation and that the Deputy Commissioner, Hazara may be informed accordingly with a further request to dispose of the other land comprised in Khasra No.661 etc. etc. as well presumably because it was not fit for their purpose. The Conservator of Forests accordingly informed the Deputy Land Commissioner, Hazara vide Letter No.184 dated 10‑9‑1968 (page 251 of the paper book) that Khasra No.681 and others may be excluded from statement "B" (statement of fit areas for the Forest Department) and further that the suit land Khasra Nos.801 and others, being the property of Khans of Naryala, may be restored to them and the remaining khasras may be auctions in open auction as they are not fit for the Forest Department. In the presence of the aforementioned documentary evidence containing the orders of the Forest Department and the Land Commission, the Forest Department had no right to join hands with Faqir Muhammad etc. to re‑open the controversy which was finally settled and they had acquiesced in the same. No doubt, the Forest Department tried for the cancellation of Mutation No.41 only but during the course of inquiry the officers of the Land Commission must have probed into the origin of ownership of the appellants and found no fault with the proceedings conducted in the attestation of Mutation No.36 and the process of partition of the joint property. Apparently these important documents being in the possession of the Forest Department or the officials of the Land Commission were not brought to the notice of the Chief Land Commissioner at the time of hearing of the revision petition rather were concealed from him with the result that the learned Chief Land Commissioner presuming that the Forest Department have been deprived of valuable rights, re‑opened the closed chapter and set at naught the entire proceedings conducted by the revenue staff as well as the Land Commission and the orders of the concerned authorities as well. There is no evidence or circumstance to suggest that in the protracted proceedings explained above the appellants at any stage concealed any material fact from the revenue staff or the Land ~' Commission or practised any fraud upon them for the inclusion of their names in the revenue record as joint owners.

15. There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a anullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It was observed by this Court in the case of Abdul Wahid v. Mst. Zamrut (PLD 1967 SC 153) that a question of fraud is never purely a question of law as it involves firstly a finding with regard to fact, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case to fraud. The Privy Council in its judgment reported as PLD 1958 Privy Council 48, held that the burden of proof lies on the party alleging fraud and this was so declared in so many cases F by this Court as well including the case of Ahsan Ali v. District Judge (PLD 1969 SC 167). In the case of Mst. Bhani v. Mian A. M. Saeed (1969 SCMR 299) this Court observed that the Courts have to be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is G based on reliable evidence. Similar observations were made in a later case Begum Shams‑un‑Nisa v. Said Akbar Abbasi (PLD 1982 SC 413) "We regret to note that it has become fashionable to make reckless allegations of fraud etc. against respectable persons in order to obtain some unjust advantage and such practices deserve to be noticed seriously and discouraged by Courts of law". Analysing the facts of the instant case on the touchstone of aforementioned dictum of this Court and the Privy Council we have no difficulty in arriving at the conclusion that neither any allegation of fraud was made by Faqir Muhammad and others, in their application with regard to the entry and attestation of Mutation No.36 whereby the appellants were made joint owners with Nawab Muhammad Farid Khan nor any proof was tendered to establish fraud in the entry and attestation of the said mutation. As a matter of fact, the Deputy Land Commissioner while reviewing the earlier orders did not touch upon the vires of the said mutation. Before the learned Chief Land Commissioner too, there was no allegation of fraud regarding Mutation No.36 and while taking cognizance suo Motu he failed to notice the conduct of the Forest Department whereby they had abandoned their proposal for the suit land long long ago and the conclusion of the learned Chief Land Commissioner that the Forest Department had paid sale consideration for the suit land was apparently based on mere conjectures and presumptions. The subordinate Land Commissioner staff were also aware of it but they too, failed to produce the relevant record described above before the learned Chief Land Commissioner and resultant wrong conclusion by him that the appellants must have practised fraud to grab valuable thick forest. There is no evidence of any payment made by the Forest Department as consideration for the suit land to anyone, if they had made any advance payment that was not specifically for the suit land brat for the transfer of land yet to be transferred to them for forest purposes and in view of the clear abandonment made by the Forest Department from the offer of the suit land the question of payment of sale consideration therefore did not arise. The impugned order of the learned Chief Land Commissioner, therefore, is not sustainable legally and factually.

16. There was yet another insurmountable difficulty in the way of review of earlier orders which escaped the notice of the Chief Land Commissioner. After the dispute was set at rest, the entries of the jamabandi based on the impugned mutations in jamabandi 1963‑64 were repeated in the jamabandi 1967‑68 and on the basis of the said entries several alienations took place on behalf of the appellants commencing from Mutation 132 attested on 25‑5‑1973 and also of the property which was allotted to the Government through resumption. No notice was given to the transferees before the review of the order by the Deputy Land Commissioner or the Chief Land Commissioner and as such the impugned orders suffer from legal infirmity on this score too.

17. Under rule 11 of the West Pakistan Land Reforms Rules, 1959 the Deputy Land Commissioner, no doubt, can review an order passed by himself suo Motu or on an application made to him within 10 days from the order but he cannot do so without prior sanction of the Land Commissioner of the area concerned. Rule 14 of the Rules ibid attaches finality to the orders of or made H by the respective officers of the Land Commission. The power of review was not available to the Deputy Land Commissioner according to the statute or the rules themselves and the application for review was obviously time‑barred as well. The learned Deputy Land Commissioner and the Chief Land Commissioner exercised their jurisdiction assuming that fraud had been committed and as discussed above, since no fraud or collusion is proved in the attestation of Mutation No.36 and the partition carried out by the Land f Commission, the impugned orders of the Deputy Land Commissioner, and the Chief Land Commissioner are not sustainable.

18. The appellants had invoked the Constitutional jurisdiction of the High Court through Writ Petition No.15/80 challenging the legality and correctness of the orders of the Deputy Land Commissioner and the Chief Land Commissioner referred to above. But it appears that the relevant documents were not placed on the file of the writ petition and the learned Judges of the High Court did not feel inclined to disturb the finding of the Chief Land Commissioner which was, according to them, pure and simple question relating to factual controversy of fraud having been committed in the attestation of Mutation No.36.

19. The upshot of the above discussion is that we accept the instant appeal, set aside the impugned judgment of the High Court dated 23‑5‑1989, the order of the Chief Land Commissioner dated 28‑11‑1979 and restore that of the Land Commissioner dated 7‑6‑1979 with the result that Mutation No.36 was rightly attested in the name of appellants as co‑sharers and the partition carried out by the Land Commission on the strength thereof and subsequently incorporated through Mutation No.41 in the Revenue Record were neither based on fraud or collusion and shall remain intact. SALEEM AKHTAR, J.‑‑‑I have had the advantage of reading the exhaustive judgment proposed by my learned brother Wali Muhammad Khan, J., but regret that I am unable to concur with it. As the facts have been set out in the proposed judgment in detail, I do not wish to repeat them. The dispute relates to land situated in village Nariala, District Mansehra which previously formed part of Amb State. The claim made by the appellants based on Mutation No.36 on the basis of which further mutations were recorded. By Mutation No.36, the appellants were recorded as co‑owners of the disputed land alongwith Nawab of Amb. If this mutation is not legal and proper, the entire structure built on it shall crumble. The appellants could claim the disputed land in terms of letter No.LR9/5‑88 dated 15‑7‑1959 by the Secretary, Government of West Pakistan, Revenue and Rehabilitation Department addressed to the Secretary, Board of Revenue, West Pakistan, Lahore wherein the `Gozara‑Khors' and `Seri‑Khors' and the persons who were paying rent at the land revenue rate were recognized as proprietor of the land held by them. Mutation No.36 thus obtained by the appellants was held by the learned Deputy Land Commissioner as irregular and as a result of fraud. The learned Land Commissioner, however, did not agree and observed as follows: "The record of the case is destitute of the material to establish the factum of fraud in positive terms. In any event while upholding the genuineness of all other transactions he was not entitled in any fashion to lable the transactions recorded in Mutation No.36 as fraudulent merely because an allegation of fraud was levelled and the atmosphere was surcharged with wild allegations, in the total absence of the particulars of the fraud alleged and legal proof in relation thereto. The learned Chief Land Commissioner by his order dated 28‑11‑1979, after recounting history of the land, culminating in the surrender by the Nawab under Martial Law Regulation No.64 and the order passed by the Dy. Land Commissioner after due verification on 6‑10‑1960 whereby surplus land of 81,292.307 acres was resumed in favour of Land Commissioner observed as follows: "There is nothing on record to show that at that time anyone was recorded co‑owner with the Nawab in the area declared by the Nawab to be surplus in village Nariala. Though the area in dispute was surrendered by Nawab of Amb and vested in the Provincial Government through Land Commissioner yet it was shown in the record in the ownership of Provincial Government. Muhammad Younas etc. respondents took advantage of letter No.1662/LR‑6(a) ''`''j ` LR dated 18‑1‑1960 read with letter No.LR‑9/5‑58 dated 15‑7‑1979 and got Mutation No.36 involving the transfer of land of 2,456 Kanals 12 Marlas attested on 25‑12‑1963 in their names as co‑owner with Nawab who has been shown to own 52 shares and the remaining 86 shares belongs to Muhammad Younas etc. respondents" (Appellants in the present appeal). It was held that the Nawab did not exercise choice to retain the disputed area which proved the fact that it was surrendered by the Nawab as a forest in preference to cultivable land. At that time the Nawab of Amb was not shown as co‑sharer with any person in respect of the disputed land nor did `Gozara‑Khors' (appellants) produced any decision of the Government or any other authority to show that they were the co‑sharer with the Nawab who was the exclusive owner of the said land which he surrendered in favour of the Land Commissioner because he could not retain more than his ceiling. The learned Chief Land Commissioner noted that Mutation No.36 was entered by the Patwari on 22‑9‑1963 and attested by the Revenue Officer on 25‑12‑1963, although the land in dispute had been resumed much earlier or. 6‑10‑1960 and vested in the Government through Land Commissioner. It was further observed that the decision of the Government issued through letter No.LR‑9; 5‑58 dated 17‑7‑1959 was not applicable after the land was resumed. Coming to the conclusion that the appellants got their names mutated through Mutation No.36 fraudulently, it was observed as follows: . "Subsequently, as a result of partition proceedings a Mutation No.41 for partition of share of the respondents was sanctioned on 11‑9‑1964. All this goes to show that transaction through Mutations Nos.36 and 41 were nothing more but a fraud inasmuch as, firstly this land in dispute was surrendered by the Nawab of Amb on 6‑10‑1960 and thereafter he could not have any right to recognize the respondents as co‑sharers with him and secondly the land in dispute after resumption was made over to Forest Department and thirdly they could not claim to be declared proprietors for the area which was not in their possession and for which they were not paying any rent equal to land revenue. The entry of the Revenue Record does not support their claim. Thus they were not in any way entitled to claim any share in the land in dispute:' This finding is based on facts, documents and substantial reasoning. This order was challenged before the High Court in a Constitution petition which was dismissed by the impugned judgment. The learned Judges of the High Court agreed with the reasoning and conclusion of the Chief Land Commissioner, who concurred with the finding that the appellants had failed to establish their entitlement to be recorded as co‑sharer with the Nawab of Amb and therefore Mutation No.36 was irregularly recorded in their favour. The entries in the mutation record are fiscal in nature, do not conclusively establish ownership in favour of the person in whose favour such entries had been made and provide merely a rebuttable material. Reference can be made to Muhammad Haider Zaidi v. Abdul Hafiz 1991 SCMR 1699. In case where the right of the person whose name has been recorded and the entry has been challenged on grounds of fraud, such entry can hardly prove ownership. In the present case, the High Court while concurring with the view of the Chief Land Commissioner refused to exercise its jurisdiction and correctly so,, as in the facts and circumstances set out above, exercise of jurisdiction would have been in aid of injustice. The nature of controversy particularly the legality and correctness of Mutation No.36 is essentially a factual controversy. Where the case has been considered by various authorities, their decision on fact can be disturbed in exercise of writ jurisdiction if it is against the material on record or without any basis. Even in such cases the High Court refrains from substituting its own finding of fact and proper course is to remand the case to lower Tribunal for proper determination of the controversy. Reference can be made to PLD 1970 SC 39; 1972 SCMR 47 and 1981 SCMR

758. It is a consistent view of this Court that in cases where factual controversies are involved, Constitution petition in the High Court is not the proper remedy. Reference can be made to: PLD 1980 SC 139; 1980 SCMR 933;1981 SCMR 291;1989 SCMR 918 and PLD 1991 SC

476. For these reasons, I would dismiss, the appeal. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑I agree. ORDER OF THE COURT By majority view, Civil Appeal No.360 of 1990 is hereby dismissed. M.BA./M‑1718/S Appeal dismissed.