2012 PLP 754 (CLC)

MUHAMMAD ALI MAZHAR, J.

This constitutional petition has been brought to challenge an order dated 2-12-2008 passed by D.D.O.(Revenue) Kamber, Shandadkot (respondent No.5) in Appeal No.Nil of 2008, whereby, he cancelled the Entry No.171 dated 16-2-1993 with all its subsequent transactions and further directed the Mukhtiarkar (Revenue) Nasirabad to effect the mutation of the original plot Un-City Survey Deputy Settlement No.64 measuring 450 sq.yards situated in Nasirabad Town in TF-11 in favour of the title holders i.e. original auction-purchaser and subsequent vendees, who acquired the right of ownership through registered sale-deeds.

2. Succinctly, the facts of the case are that a Sikni plot Un-City Survey Deputy Settlement No.64 measuring 450 sq.yards was originally an evacuee property, which was auctioned in favour of Niaz Muhammad, who surrendered the same in favour of Muhammad Sardar Khan. The said property was purchased by Syed Waqad Raza and thereafter, it was purchased by Ghulam Nabi, Ghulam Rasool and Khalid Waheed.

3. The petitioners Nos.1 to 10 are the legal heirs of Ghulam Nabi. In the year 1994 the respondent Khalid Waheed and Ghulam Rasool (co-sharer) had filed a Suit No.21 of 1994 for settlement of accounts against Ghulam Nabi. The suit was decreed on 21-5-1998. Ghulam Nabi expired and his legal heirs (Petitioners Nos.1 to 10) challenged the decree in Civil Appeal No.51 of 1998, which was dismissed and subsequently, the said petitioners filed Civil Revision No.17 of 2005 in this court, whereby the judgment in appeal was set aside and matter was remanded to Senior Civil Judge with the direction to decide the additional issues framed by this court.

4. The grievance of the petitioners is that during pendency of this suit after remand by this court, the impugned order was passed by the respondent No.5.

5. The learned counsel for the petitioners argued that appeal filed by the respondents Nos.1 and 2 before respondent No.5 was not maintainable during the pendency of Civil Suit. He further argued that the impugned order has been passed in slipshod manner without adverting to the crucial facts involved in the case and no ample opportunity was provided to the petitioners in the matter. He further argued that the matter was sub judice before the Civil Court for deciding the case afresh in the light of additional issues framed by this court in the revision application, but in spite of clear knowledge, the respondent No.5 without waiting the decision of Civil Court exercised his powers unlawfully and even the order passed by the respondent No.5 is also in violation of Land Revenue Act.

6. The learned counsel for the respondents Nos.1 and 2 argued that the petitioners have not approached this court with clean hands and want to usurp the plot of respondents Nos.1 and

2. In fact, the correct position is that the respondents Nos.1 and 2 and the father of the petitioners had purchased the property in question. He further argued that the said plot was sold out by the petitioner No.10 to petitioner No.1 without permission and knowledge of respondents Nos.1 and 2, therefore, the respondents Nos.1 and 2 had filed application for cancellation of Entry of the plot in question. He further argued that there is no Plot No.171 and instead of Entry No.171 in the additional issues framed by the court in the revision application, the Plot No.171 has been wrongly mentioned and the petitioners had made no effort or attempt for the rectification of this typing error. He further argued that in the year 2007, the respondents Nos.1 and 2 filed an appeal before D.D.O. (Revenue) Taluka Nasirabad for the cancellation of Entry No.171, which is still pending without any decision, therefore, the respondents Nos.1 and 2 filed second appeal before D.O. (Revenue) (respondent No.5), who after hearing the parties passed the order and cancelled the Entry No.171 rightly and the petitioners have no justifiable reason to challenge the order.

7. The learned A.A.-G. supported the impugned order and argued that respondent No.5 has rightly issued direction to the Mukhtiarkar (Revenue) Nasirabad to effect the mutation of the original plot Un-City Survey Deputy Settlement No.64 measuring 450 sq.yards situated in Nasirabad Town in TF-11 in favour of the title holders i.e. original auction purchaser and subsequent vendees, who acquired the right of ownership through registered sale-deeds.

8. We have examined section 161 of the Land Revenue Act, in which, the provisions for appeals against original or appellate Order of the Revenue Officer are provided. For the convenience and ready reference, section 161 of the Land Revenue Act is reproduced as under:

161. Appeals.

(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of Revenue Officer as follows, namely

(a) to the Collector, when the order is made by an Assistant Collector, of either grade; (b) to the Commissioner, when the order is made by a Collector; (c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner; Provided that

(i) when an original order is confirmed on first appeal, a further appeal shall not lie; (ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner or further appeal, if any, to him shall be final.

9. It is an admitted fact that neither any original order was in field nor any appellate order but without adverting to this crucial question of law and maintainability of appeal without any original or appellate order, not only the appeal was entertained by the respondent No.5 under section 161 of the Land Revenue Act but he also passed an order in his appellate jurisdiction, which is totally against the provisions of law. The respondents Nos.1 and 2 in the memo of appeal had clearly mentioned that earlier appeal filed by them before the respondent No.4 is pending adjudication without any order. Instead of simply issuing the directions to the respondent No.4 to decide the pending appeal, the respondent No.5 himself assumed the jurisdiction, entertained the second appeal and allowed the same in contravention of law while, he himself observed in the impugned order that an appeal is pending before respondent No.4 who did not pass any order.

10. If there is any error on the point of law by the Courts below or tribunal and the decision is based in violation of the provisions of law or is based on misreading or insufficient or inadmissible evidence, then in order to advance the cause of justice, superior courts have jurisdiction to come rescue to an aggrieved party. Failure on the part of statutory functionary or a court to make a visible effect with diligent application of mind to adjective assertion or to strive in search of truth for the sake of jurisdiction, the same tantamount failure to exercise jurisdiction in the eye of law. Where the order passed suffers from any jurisdictional defect or violates any provisions of law and if the error if so glaring and patent that the same may not be acceptable, invocation constitutional jurisdiction is justified. Reference can be made to PLD 2001 SC149.

11. Since an appeal under section 161 can only lie from an original or appellate Order of the Revenue Officer and there was no original or appellate order before the respondent No.5 therefore, he wrongly exercised his jurisdiction in the matter. Proper exercise of jurisdiction by respondent No.5 would be to simply issue directions to respondent No.4 to decide the pending appeal and not to pass any order by his own.

12. For the foregoing reason, the impugned order dated 2-12-2008 passed by the District Officer (Revenue), Kamber Shandadkot at Kamber is set aside and respondent No.4 is directed to decide the appeal filed by respondents Nos.1 and 2 against the petitioner No.1 under section 161 of the Land Revenue Act within one month. The petitioner shall be at liberty to take all pleas in his defence including the pendency of proceedings in the civil court. Petition stands disposed of in the above terms. H.B.T./G-52/K Case remanded.