MUHAMMAD NAWAZ And Others vs PIR BAKHSH And OTHER

ORDER

The parties, facts and law involved are the same in the three revision petitions. They shall therefore be disposed of by one order.

FACTS The scheme of village Thul Wazir Khan was confirmed on 25 December, 1984. The petitioners were joint owners in Khata No. 2 with the respondents at the time, and under three different Wandas their shares of the joint holdings came to 40 kanals The respondents appealed against this allotment to the Additional Deputy Commissioner (Cons.) alleging that they are owners of the whole land on the basis of Mutation No. 253 of 28-9-1945, through which the ancestor of the petitioners had sold 1/2 of 80 kanals of his land as. Somehow, this Mutation was never entered in any Jamabandi. The Additional Deputy Commissioner (Cons.) on 18-8-1985, accepted the appeal and ordered that Mutation No. 253 should be given effect to, and on that basis the ownership of the parties should be determined in consolidation. The petitioners went to the Court of the Additional Commissioner (Consolidation) who on 17-5-1987 decided to uphold the decision of the Additional Deputy Commissioner (Consolidation). The petitioners have now come up in the present revision against the order of the Additional Commissioner (Consolidation) dated 17-5-1987.

ARGUMENTS

1. Actually there is only one legal question involved in the present case i.e. Whether a mutation sanctioned in 1945, but never entered in any periodical record or record of rights, could be accepted as a basis for change in the record of rights in 1985. The law on this matter is very clear and has been repeatedly laid down by superior Courts, and that is that mutations are summary proceedings and whenever there is any complicated question of law or fact, it cannot be clinchedth by the summary proceedings of mutations. No detailed evidence is taken at the time of attestation of mutations and for the same reason they do not determine the parties rights. It has been held repeatedly that long-standing entries in periodical record or record of rights are a stronger piece of evidence than a mutation which has not been entered in them. In such a situation, instead of changing these records after a long period, the law envisages the evaluation of both pieces of evidence namely the non-entered mutation and long existing entries in the record, by a proper Court i.e. a Civil Court, which has the authority g to frame issues, take evidence and evaluate that evidence to arrive at a conclusion. It would be against time-honoured principles of Revenue administration to recognize a mutation against 40 years of entry of ownership in the record of rights.

2. The above position is particularly valid for the consolidation authorities who are supposed only to take up where the Revenue authorities have last left of and not go beyond the record that they have taken over from the latter. In other words it would give the consolidation authorities a dangerous latitude if they were permitted to look into the vires of entries in. It is not their function at all. The consolidation authorities have clearly gone much beyond their legitimate role by recognizing the mutation which has not figured in the C record of rights for four decades. If they had this authority they could open Pandoras boxes at the time of each consolidation operation, and instead of doing their restricted duties under the law of consolidation, they would get entangled in matters which are best left to other authorities. The function of the consolidation authorities is temporary and of a specific character.

3. The argument that the respondents have been entered in the cultivation column of certain Jamabandis as will be of no assistance to them in the present case. This is a settled procedure that if in a joint khata a certain owner is also a cultivator, he is entered as regardless of the size of his ownership. In the present case it is not on record whether the respondents had not come to own some other land in the same Khata when they were recorded as cultivators. In any case they do not figure as owner in the Jamabandi. However, this might be weighed as a piece of evidence by the proper Court where this matter was agitated. The present Court cannot decide on this here.

4. As regards their own admissions in the grounds of appeals and revisions, that they are inheritor under ancestor who had entered into Mutation No. 253 of in favour of ancestor of the respondents, this cannot form the basis for the Consolidation Authorities to go beyond the. This mayor may not be a strong piece of evidence to frustrate their stand against Mutation No.253, but this has to be assessed and determined by a Civil Court. It would be wrong for Revenue Authorities to be correcting their old record on the basis of assertions, admissions and denials made in pleadings.

5. Because of the above arguments 1 accept the revision petition and order that the impugned order as well as the order of the Additional Deputy Commissioner (Cons.) shall not form the basis of the distribution of Wandas between the parties; in other words Mutation No. 253 shall not be taken into account for the purpose of consolidation of holdings of the parties.