BASHIR AHMAD Versus MUHAMMAD AKRAM
MUDASSIR KHALID ABBASI, J.--- Through this civil revision petitioners have challenged the legality of judgment and decree dated 19.2.2011 passed by the learned Additional District Judge, Vehari whereby appeal filed by the respondents was allowed.
2. Brief facts of the case are that the respondents filed a suit for declaration and cancellation of mutation No.1061-62 dated 29.11.1997. Petitioners contested the suit and filed their written statement. After framing of issues and recording of evidence suit was dismissed by the learned trial court vide judgment dated 31.3.2010. Feeling aggrieved, respondents filed an appeal, which met the same fate vide judgment dated 19.2.2011.
3. Learned counsel for the petitioner contends that the impugned judgment and decree of the lower appellate court is against the mandatory provision of Order XLI, Rule 31, C.P.C. Contends that learned ADJ has set aside the judgment without any reasoning. Further argued that the learned appellate court has not discussed the evidence available on record. Learned counsel for the petitioners has further contended that the judgment of the learned lower appellate court is based on surmises and conjectures, result of misreading and non-reading of evidence and material irregularity/illegality has been committed by the lower appellate court. He has placed reliance on 2007 SCMR 914, 2012 MLD 78, 2014 SCMR 1594 and 2014 MLD 780.
4. Conversely, learned counsel for the respondents has supported the impugned judgment and decree passed by the learned appellate court. Contends that there is no jurisdictional defect or illegality in the impugned judgment. Further argued that in terms of section 147 of the Land Revenue Act, in case of partition without intervention of Revenue Officer, mutation has to be affirmed in accordance with section 150 of the Act ibid. Contends that the impugned mutations have been sanctioned without lawful authority, therefore, void by its inception. He has placed reliance on 1992 CLC 1190, PLD 2003 Supreme Court 688, 2006 SCMR 185, 2007 SCMR 914, 2011 SCMR 153 and PLD 2012 Peshawar 151.
5. I have given my conscious thought to the arguments advanced by the parties and have perused the record.
6. Critically important and primary legal questions involved in this case are, firstly that as to whether the partition mutation Ex.P3 was sanctioned by a competent authority and the provisions of chapter XI, of the West Pakistan Land Revenue Act, 1967, pertaining to partition are applicable to the cases of private partition which are being executed, without the intervention of the revenue authorities. Secondly, that if any order is passed in violation of section 150 of the Act ibid, would it be a void order and what would be its effect with particular reference to limitation for filing of suit. Finally, as to whether the judgment of the learned appellate court violates the provisions of Order XLI, Rule 31, C.P.C.
7. So far as the applicability of chapter XI of the Land Revenue Act, 1967 is concerned learned counsel for the petitioner, has controverted the same while relying on section 42 of the Act whereas sections 147 and 150 of the Act ibid has been referred by the opposing side. In order to resolve this controversy it would be expedient to reproduce the relevant provisions of the Act:-
"42. Making of that part of periodical records which relates to land-owners . (1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall:--
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.
147. Affirmation of partitions privately effected . (1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition.
(2) On receiving the application, the Revenue Officer shall enquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under sections 143, 144, 145 and 146, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.
150. Officers who may be empowered to act under this Chapter . The Revenue Officer by whom proceedings may be taken under this Chapter shall be a Revenue Officer not below an Assistant Collector of the First Grade."
8. Plain reading of the afore cited provisions would lead to a conclusion that in case of private partition, only a revenue officer, not below the rank of Assistant Collector of the first grade is empowered to affirm such partition.
9. Admittedly, in the present case mutation, subject matter of the suit was not sanctioned by the Assistant Collector (first grade). This, in fact is one of the basis of filing the suit as in paragraph No.5 of the plaint, a specific ground has been taken by the respondent/plaintiff and issue No.1-A, was also framed to this effect. It is pertinent to mention here that this issue was not discussed by the learned trial court on the ground that since the suit is time barred therefore, no need to discuss the same. Moreover, DW-4 Naib Tehsildar who, appeared and admitted that he himself attested the mutation, whereas Assistant Commissioner Grade-1, was competent to do the same, according to him, if it is with the consent of the parties Naib Tehsildar could also exercise such powers. This interpretation of the said DW is alien to law.
10. As far as the applicability of section 42 is concerned it deals with acquiring by inheritance, purchase, mortgages, gift, or otherwise any right in the estate as a landowner, whereas none of these attract to the present case. Therefore, 1 am of the firm view that chapter XI of the Act ibid would fully attract to the private partition of a property and any deviation would certainly effect the execution of the partition mutation as in this case the lower appellate court has rightly observed that, partition mutation challenged by the petitioner, No.1061-62 dated 29.11.1997 was attested by DW-4 (Naib Tehsildar) without jurisdiction, therefore, is a nullity in the eyes of law, being a void order.
11. Although question of limitation has been discussed by the trial court, however, the learned lower appellate court while declaring the partition mutation as void has over turned the findings of the trial court on the ground that no limitation runs against a void order. Learned counsel for the petitioner while relying on 2014 SCMR 1594 has emphasized that void order does not allow a party to sleep over it and the time for the filing of suit reckons from the date of knowledge. This has been controverted by the other side while relying on 2007 SCMR 834 and 2007 SCMR 262. Although the trial court has discussed the question of limitation but it seems that the law laid down dealing with the void orders was not properly appreciated by the learned trial court. Moreover, it is one of the ground taken by the present respondent/defendant before the appellate court that the trial court has non-suited the plaintiffs merely on the ground that the predecessor of the plaintiffs remained alive till 2003 and he himself had not challenged the said mutation in his life time. This, in my humble view could not be made basis for declaring the suit time barred with particular reference to the legality of the impugned mutation.
12. Finally, ground aggressively urged by the petitioner is that the impugned judgment passed by the appellate court does not come up to the requirement of Order XLI, Rule 31, C.P.C., therefore, the case may be sent back to learned Additional District Judge. To my mind it varies from case to case, so far as the case in hand is concerned, though as many as nine issues were framed however, trial court had dismissed the suit mainly on the ground of limitation which has been addressed by the appellate court in the context of the legality of the impugned Notification, with reference to the jurisdiction of the authority who had attested the mutations in question without jurisdiction. Moreover, at this stage it would not be appropriate to remand the matter to the appellate court for its decision afresh as the parties are locked into ordeal of litigation since 2005. This Court in its revisional jurisdiction is fully equipped to examine the legality of the impugned judgment. Therefore, pushing the parties in the past, would certainly amount to miscarriage of justice.
What has been narrated above, I am not persuaded to interfere in the impugned judgment dated 19.2.2011 passed by the appellate Court. This petition does not succeed and is dismissed as no order to cost.
MQ/B-10/L Revision dismissed.