MUHAMMAD ILYAS KHAN vs MUHAMMAD And Other

ORDER

ZAFFAR HUSSAIN MIRZA, J.--The case of the petitioner, as put up by his learned counsel before us, is that he purchased the disputed land bearing survey Nos. 870, 871 and 875 with buildings thereon, situated in Deh Thano Taps Malik, District East Karachi, under an agreement for sale executed by respondent No. 1 on 3 August, 1960. The total consideration agreed between the parties was Rs.75,000 out of which the petitioner is said to have paid Rs.70,000 at the time of the agreement, leaving the balance of price amounting to Rs.5,000 to be paid at the time of registration of a sale- deed in his favour. It is submitted that on the basis of this agreement petitioner tried to obtain mutation of his name in the revenue record but did not succeed therein. Meanwhile it seems respondent No. 1 died and on the application of respondent No. 2, the Mukhtiarkar mutated the Khata in respect of the land in dispute in the name of the heirs of the deceased on 5th April, 1982.

On appeal against the order of mutation effected by Mukhtiarkar, the Assistant Commissioner, Karachi East, set aside the mutation and ordered mutation in the name of the petitioner on the basis of the agreement of sale, in favour of the petitioner. The respondents filed appeal to the Deputy Commissioner, but failed and consequently they filed another appeal to the Commissioner, Karachi, who accepted the same and set aside the order of the Assistant Commissioner, on the ground that action by way of mutation in favour of the petitioner could not be taken by the revenue authorities on the basis of the agreement of sale, in absence of a registered sale-deed. This order was challenged before the Member, Board of Revenue, who by his order, dated 18th September, 1984, remanded the case to the Mukhtiarkar for fresh decision according to law.

2. The petitioner being aggrieved by this order challenged the same in a constitutional petition before the High Court of Sind, Karachi, but a division bench of the said Court dismissed thisrd constitutional petition in limine by their order, dated 10th October, 1984. This petition for leave to appeal has been filed in these circumstances by the petitioner.

3. Before dealing with the contentions advanced by the learned counsel in support of this petition it may be stated that the petitioner, before the proceedings commenced in the revenue Courts, had on 22nd September, 1981, filed a suit for specific performance of the agreement of sale in his favour, which suit is still pending adjudication in the civil Court. Learned counsel for the petitioner has resurged the contentions advanced by the petitioner before the High Court which did not find favour with the learned judges of the division bench. The first contention was that respondents Nos.

2 to 9 who claimed to be the legal representatives of the deceased vendor have no locus standi.

The High Court rightly rejected this argument on the ground that the civil suit on the basis of the agreement is already pending in the civil Court where appropriately this question can be raised and adjudicated.

4. In any case the matter relating to mutation already stands remanded to the Mukhtiarkar where all the disputed questions could be resolved and determined so far as relevant to the mutation.

5. The next submission of the learned counsel was that both the appeals, preferred by the respondents were patently time-barred and this aspect not having been adverted to by the concerned Revenue Officers, the orders passed by them were patently void and without jurisdiction. It may be pointed out that the impugned order in they constitutional petition before the High Court was the one passed by the Member, Board of Revenue, in exercise of revisional jurisdiction. The objection as to the bar of limitation has not been raised by the learned counsel in connection with the said impugned order. In the circumstances, in view of the rule laid down by this Court in Pir Muhammad Farid Jan v. Colonization Officer etc., PLD 1965 SC 399, the said order of the Board of Revenue did not suffer any legal infirmity as it was passed after full hearing on merits and was, therefore, not assailable even if the intermediary appellate orders passed by the learned Revenue Officers suffered from any illegality or want of jurisdiction. Reference may also be made to a recent decision of this Court in Kala v. Board of Revenue and another PLD 1985 SC 208 where a similar opinion has been expressed.

6. After hearing the learned counsel at length we find no ground to interfere with the impugned order of the High Court and dismiss this petition.