GHULAM MUSTAFA Versus ABDUL WAHID

MUHAMMAD AFZAL LONE, J.‑ ‑The facts are that the land in dispute, originally belonged to Dil Muhammad and Badar Din who by means of a registered sale‑deed dated 13‑9‑1955 sold it away to respondents Nos.l and 2. Dil Muhammad has died. Petitioners Nos.l and 2 are the sons of the deceased. Badar Din, petitioner No.2 also expired during the pendency of the writ petition and is now represented by his legal representatives. Though the sale transaction took place in the year 1955 but it was not acted upon in the revenue record until 29‑11‑1962 when mutation No.580 was sanctioned on the basis of the sale‑deed aforesaid. In the meanwhile M.L.R. No.64 was enforced with effect from 3‑3‑1959. On the petitioner's move that mutation No‑580 violative of the provisions of M.L.R.64, the Collector vide his order dated 12‑5‑1970 permitted its review. Accordingly, the Assistant Collector‑II entered mutation No.21 of 'Sehat Andaraj' and sanctioned the same on 3‑6‑1970. Consequently, the land in question reverted to the petitioners.

2. The respondents went in appeal before the Assistant Commissioner with powers as Collector, who took the view that the sale having been made before the enforcement of M.L.R.64 was not affected by the provisions thereof. Thus, by his order dated 20‑2‑1971 he accepted the respondent's appeal and restored Mutation No.580 in their favour.

3. This order was assailed by the petitioner through a further appeal before the Additional Commissioner (Revenue). It was accepted on 8‑6‑1971. He maintained that the respondents should have gone in appeal or revision against the Collector's order dated 12‑5‑1970, which could not be overridden by the Assistant commissioner, who was a forum of co‑ordinate jurisdiction. Resultantly, mutation No.21 was upheld. The respondents thereafter invoked the revisional jurisdiction of the learned Member, Board of Revenue. Their revision petition was allowed on 9‑4‑1978. The reasons which prevailed with the learned Member, Board of Revenue in accepting the revision petition are:‑

It appeared that mutation No.580 was sanctioned in pursuance of a registered sale‑deed on 13‑9‑1955. It means that the transaction took place before the promulgation of Martial Law Regulation No.64 under the provisions of which this mutation was allowed to be reviewed by the District Collector vide his order, dated 12‑5‑1970 by entering another mutation. It, therefore, appears that the order of the District Collector sanctioning review of mutation No.580 was contrary to law and as such the subsequent order of the A . C .I I dated 3‑6‑1970 sanctioning mutation No.21 was also not correct ...."

The order of the Board of Revenue is under challenge in this writ petition.

4. We have heard the learned counsel for the parties and examined the available record. It is to be seen that when the matter went in revision before the learned Member, Board of Revenue, Abdul Waheed respondent No.1, herein, who was petitioner No .l before the Board, had already sold the land falling to his share to respondents Nos.3 to 11 herein. When the revision petition came up for hearing before the learned Member, Board of Revenue, the learned counsel for petitioners No.1 and 2, withdrew the revision to their extent. Thus, only the alienees from respondent No.1, were left as petitioner.

5. It is to be seen that the sale by Abdul Waheed, respondent No.l, in favour of Noor Muhammad and other respondents, was, pre‑empted by Ruldu respondent No.13, vide decree dated 8‑3‑1972. On the strength of the Additional Commissioner's order dated 8‑6‑1971, mutation No.21 was restored. The petitioners claimed to be the owner of the land in question. They filed a declaratory suit challenging the validity of the decree dated 8‑3‑1972. Their suit was decreed by the trial Court on 14‑4‑1977, but this decree was set aside by the learned first appellate Court on 7‑5‑1986, primarily on the ground that the Additional Commissioner's order aforesaid was removed in revision by the Board of Revenue vide its decision dated 9‑4‑1978. We may observe, that the judgment and decree of the learned first appellate Court, have been called in question by the petitioners in R.S.A. No. 126 of 1986, decided today.

6. With this background of the case, the learned counsel for the petitioners argued that respondents Nos.1 and 2 withdrew from the revision; even if respondent No.l having disposed of his land is taken to have lost interest in the property; by withdrawal of his revision petition by respondent No.2, at least to his extent, the order of the learned Additional Commissioner could not have been disturbed, in revision. Thus, in the submission of the learned counsel to the extent of share of Muhammad Yaqoob, the learned Member's interference with the said order was without jurisdiction.

7. We are persuaded to agree with the learned counsel. The revisional jurisdiction under section 164 of the Land Revenue Act cannot be invoked as a matter of right. No doubt, this section permits filing of application before the Board of Revenue by an aggrieved party and on such application the Board may call for the record of the case, pending before or, decided by, any subordinate authority, but that does not mean that the party can require the Board as of A right to requisition the record and exercise revisional jurisdiction. The object of such application seems to be to lay information before the Revisional authority as to the commission of some illegality by the subordinate forum. This information stood sufficiently convey to the learned Member, Board of Revenue when the revision petition on behalf of respondent No.2 and others was filed and the record requisitioned by him. From the impugned order, it is clearly noticeable that the request to withdraw from the revision, was made at the stage of the arguments, when the exercise of revisional jurisdiction) had already been set in motion. At that stage, the respondents' withdrawal was not of any significance, for, the Board already embarked upon exercise of revisional jurisdiction.

8. The learned counsel could not say much on merits. Admittedly, the sale was made by means of a registered sale‑ deed dated 13‑9‑1955, and the ownership right in the land transferred to the vendees long before the promulgation of Martial Law Regulation No.64. The mutation was sanctioned on the foundation of the sale‑deed. There should be e no doubt that mutation does not create title and its purpose is to incorporate entries regarding ownership and possession, in the revenue record to facilitate the collection of land revenue. The transaction was not at all hit by Martial Law Regulation No.64. The order of the learned Member, Board of Revenue is thus not open to any exception. In fact in this respect, the learned counsel for the petitioner was unable to create any dent in the impugned order and he sought its removal merely on the basis of technicalities. It is significant to note that the order of the Additional Commissioner was unitary in character and when it was found to be suffering from an Regality it had to be set aside as a whole. In our view, this illegality was so patent‑ on the face of the record that the review of the mutation on the plan of Martial Law Regulation No.64, stood self‑condemned and the Board in exercise of revisional jurisdiction was bound to interfere therewith. In these circumstances, the order of the learned Additional Commissioner had to be set aside in its entirety and the learned Member, Board of Revenue did so rightly.

9. It was also argued that the factum of trial Court's decree dated 14‑4‑1977 was brought to the notice of the learned Member, Board of Revenue; the Civil Court's decision was binding on him but he ignored the same.

10. This submission too, has no substance. The learned Member, Board of Revenue, was not determining the title of the parties. Only the validity of review of Mutation No.580 was under adjudication before him. In this context in the impugned order he expressed the view that the decision of the Civil Court was not relevant to the controversy before him. We do not think that there is anything wrong with this view of the Tribunal below. Further, the decree of the trial Court was subjected to appeal and a learned Additional District Judge, accepted it on 7‑5‑1986. Needless to state that when an appeal is filed, the entire case is re‑opened. The decree on which the petitioners richly relied, as maintained above, was ultimately set aside by the appellate Court. This decree was declaratory. The effect of the appellate Court's judgment was, as if, the learned trial Court's decree never existed. Looked from any angle, the petitioners' implicit reliance on the decree of the trial Court, cannot advance their cause in any manner.

For all these reasons, we do not find any illegality, much less jurisdictional defect in the order of the learned Member, Board of Revenue. Consequently this writ petition is dismissed with costs.

H.B.T./G‑111/L Petition dismissed.