ABDUR RAHMAN Versus RIFATULLAH
MALIK MANZOOR HUSSAIN, J.--- Through this single judgment, we intend to dispose of titled writ petition as well as connected W.P. No.1509/2010, as common questions of fact and law are involved in both the petitions.
2. Briefly, the facts as narrated in the petition are that one Abdur Rehman son of Abdul Hamid got a mutation attested on 13.12.2000 bearing No.23675 and on the basis of same, two other mutations bearing No.3130 dated 21.6.2001 and mutation No.15907 dated 7.7.2001 were also attested. Later on, mutation No.27521 dated 8.4.2005 and mutation No.18735 dated 22.5.2006 were also attested on the basis of above mentioned mutations. Through application dated 16.5.2007, preferred by one Rifatullah Jan, respondent No.1 addressed to the Chief Secretary, Government of KPK, Peshawar, submission was made for cancellation of above mentioned five mutations. This application was marked to the SMBR and consequently reports were sought from concerned quarters whereupon the Assistant Collector, Peshawar through order dated 17.3.2008 passed a review order under section 163 of Land Revenue Act and consequently cancelled the above referred mutations. Feeling aggrieved, Abdur Rehman and others, petitioners preferred appeal, which was dismissed through order dated 9.6.2008 passed by the District Officer (R&E)/District Collector, Peshawar. Still dissatisfied, the petitioners preferred Revision Petition in the Court of Presiding Officer, Revenue Appellate Court No.V, Mardan, which was allowed through order dated 16.12.2008 and in consequence thereof the order passed by the two forums below were set aside. A revision was filed before the Senior Member Board of Revenue, Peshawar by the respondents and the same was entrusted to Member Board of Revenue for disposal, who through order dated 3.3.2010, while accepting the same, set aside the order of learned Revenue Appellate Court No.V, Mardan dated 16.12.2008. The petitioners through instant Constitutional petitions have challenged the legality of orders dated 17.3.2008 of the Assistant Collector, 9.6.2008 of District Collector and 3.3.2008 of Member Board of Revenue.
3. The learned counsel for the petitioners argued that initial mutations were lawfully sanctioned and the Assistant Collector was not empowered to review the mutation attested in the year 2000-2001. He further submitted that the application filed by the respondent for review was hopelessly time barred and there was no sanction of the superior official in the revenue hierarchy to the Assistant Collector, in order to make the same in accordance with law. He further contended that a civil suit in between the parties regarding the same mutations was pending disposal and a restraint order was also passed in between the parties and despite the fact that the matter was pending disposal, the Revenue Assistant Collector reviewed the mutation. He further contended that the orders passed by Assistant Collector, the Appellate Authority and the Board of Revenue were illegal, ab initio void and without jurisdiction, thus liable to be struck down by invoking Constitutional jurisdiction of this Court.
4. Conversely, the learned counsel for the respondents strongly opposed this petition on the ground that since factual controversies are involved, thus this Court cannot be able to resolve the same through Constitutional jurisdiction. He further contended that the matter is sub judice before the Civil Court and that cases are ripe up for final disposal and any observation made in this writ petition would definitely prejudice the merit of the case of either party and supported the order passed by the learned Assistant Collector dated 17.3.2008 on the ground that the same was done after a full fledge inquiry wherein the petitioner also participated and have the sanction of his superior as per requirement of section 163 of Land Revenue Act. He further referred to civil suit No.402/1 titled Rifatullah Jan v. Mst. Najab Sultan and others and another suit titled Najab Sultan v. Rifatullah Jan pending adjudication regarding the same subject matter.
Arguments heard and record perused.
5. From perusal of record it transpires that the initial inheritance mutation No.1709 was attested on 6.3.1966 regarding legacy of Ghulam Sarwar Khan, whereafter on 13.12.2000 mutation bearing No.23675 was attested in the name of mother of respondent No.1 Mst. Najab Sultan as the legal heirs of Ghulam Sarwar. On the basis of this mutation, said Abdur Rehman respondent No.1 got attested two more mutations bearing No.3130 dated 21.6.2001 and No.15907 attested on 7.7.2001, as the legal heir of Ghulam Fatima in respect of other properties owned by the predecessor of Ghulam Sarwar Khan and thereafter two more mutations bearing No.27521 dated 8.4.2005 and 18735 dated 22.5.2006 were also sanctioned. Rifatullah Jan respondent moved an application dated 16.5.2007 for cancellation of above mentioned 5 mutations whereupon DRO concerned was directed to take legal and necessary action. The matter was finally placed before the Assistant Collector Peshawar who treated the same as review petition under Section 163 of Land Revenue Act, the petitioners i.e. 2nd party was also summoned who submitted their respective statements and finally through order dated 17.3.2008, mentioned mutations were cancelled for having no footing and legal justification. This order was maintained in appeal by the learned District Officer (R&E), Peshawar, however, the revision petition filed by the present petitioner was accepted through order dated 16.2.2008. Feeling aggrieved, the respondent preferred revision before SMBR and the learned Member Board of Revenue through order dated 3.3.2010, while setting aside the order of Revenue Appellate Tribunal, restored the order of District Collector as well as of Assistant Collector and the present petitioner was directed to approach/continue litigation before the Civil Courts for the points raised by them and a direction was issued to the petitioner not to sale/exchange the suit property till decision of Civil Courts, where the cases are already sub judice.
6. It is settled by now up to the august Supreme Court of Pakistan that factual controversy cannot be gone into in a Constitutional jurisdiction of the High Court and it is the prerogative and privilege of the Civil Court to examine the disputed question of fact undertaken in the Constitutional jurisdiction of this Court. The superior Courts should not involve themselves into investigation of disputed questions of facts, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit and that can only be determined by Courts having plenary jurisdiction in the matter. In such an eventuality Constitutional petition is incompetent. In this regard, reliance is placed on Khairuddin v. Settlement Commissioner (1988 SCMR 988), Colonel Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), Muhammad Asqhar v. The State (PLD 2006 SC 326), Faiz Bukhsh and others v. Deputy Commissioner/LAC and others (2006 SCMR 219) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813).
7. We have noticed that civil suits regarding the mutations referred above are already pending disposal before the competent Civil Courts and as per information furnished by the learned counsel for the parties, the civil suits are ripe up for final hearing. The learned Member Board of Revenue rightly observed and directed the parties, under the circumstances of the present case to approach the Civil Court for points raised by the parties with regard to the impugned mutations and also passed a well reasoned order. We would refrain from commenting upon the legality of the orders passed by the revenue forums impugned in this writ petition as the same may damage the case of either party. It is for the Civil Court to decide the controversy between the parties by a full fledge trial and affording the parties to prove their stance.
For what has been discussed above, this petition as well as the connected petition bearing W.P. No. 1509-P/2010 being devoid of any force are dismissed.
ZC/582/P Petition dismissed.