Stereo. H C J C A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT RAWALPINDI BENCH
JUDICIAL DEPARTMENT

Writ Petition No.263 of 2011

Mazhar Hussain etc Vs. Shahran Bano etc

JUDGMENT
Date of hearing 27.5.2014
Petitioners Mr. Muhammad Amir Butt, Advocate
represented by:

Respondents Syed Qalab Hassan Shah, Advocate

represented by:

ABDUS SATTAR ASGHAR J:- Petitioners have

invoked the constitutional jurisdiction of this Court under Article 199
of the Constitution of Islamic Republic of Pakistan 1973 to impugn
the order dated 11.11.2010 passed by Member (Judicial-II) Board of
Revenue, Punjab.

2. Brief facts leading to this constitutional petition are that

on 11.5.2005 petitioners filed an application before the District
Officer (Revenue) Chakwal for correction of Record of Rights for the
year 1939-1940 pertaining to khewat No.154 in Mouza Veero Tehsil
and District Chakwal. The District Officer (Revenue) vide order dated
06.12.2005 allowed the sought for correction on the basis of report of
field staff and in consequence thereof mutation No.1459 was
sanctioned on 28.12.2005. Respondents challenged the said mutation
No.1459 in appeal before the Deputy District Officer (Revenue)
Chakwal which was rejected vide order dated 12.9.2007 on the ground
that order of District Officer (Revenue) dated 06.12.2005 was holding
the field. Respondents assailed the said order of Deputy District
Officer (Revenue) before the Executive District Officer (Revenue)
Chakwal through Revision petition under section 164 of Land
Revenue Act 1967 which was also dismissed vide order dated
06.10.2009. Respondents challenged the said order before the Board
Writ Petition No.263-2011
2

of Revenue Punjab Lahore through RORs No.2114/2009 and

2115/2009. The learned Member Board of Revenue accepted both the
revision petitions through the impugned order dated 11.11.2010 in the
following manner:-

“5. I have heard the arguments in detail and perused the record.
Long standing entries pertaining to over seventy years have been
changed by the DO(R)/District Collector on the basis of a report of the
revenue filed staff vide his order dated, 06.12.2005. This order of the
DO(R) was passed ex-parte stating therein that ht parties were
summoned and thereafter, proclamation in press was issued. It is
indeed strange that the parties who are still in joint possession were
never informed through the revenue staff. A number of transactions
have taken place in the last seventy years and new vendees/transferees
have stepped in, who were never made a party. The EDO(R) vide his
impugned orders have also not taken into account the fact while
chaning long standing entries, detailed evidence as well as association
of subsequent vendess/bonafide purchasers was mandatory being
necessary parties. Therefore, I accept both the revision petitions and set
aside the impugned orders of EDO(R) Chakwal dated 06.10.2009 and
of DO(R)/District Collector, Chakwal dated 06.12.2005 and also the
order of DDO(R), Chakwal dated 12.09.2007. As a result of which
mutation No.1459 sanctioned on 28.12.2005 is also cancelled.
However, the parties are at liberty to seek their remedy before the civil
court which is a proper forum in such cases.”

Petitioners being aggrieved have impugned the above

order through this constitutional petition.

3. It is argued by learned counsel for the petitioners that the

observation of learned Member Board of Revenue that petitioners
should approach the civil court is illegal as the jurisdiction of the civil
court is barred under Article 172 of the West Pakistan Land Revenue
Act 1967 relating to the correction of any entry in the record of rights
exclusively falling within the jurisdiction of the revenue officer; that
wrong entries in the revenue record could only be corrected by the
Revenue Officer and that learned Member Board of Revenue erred in
law while allowing the revision petitions through the impugned order;
that the observation of the learned Member Board of Revenue that
respondents were not legally proceeded against ex-parte during the
proceedings before the Revenue Officer and District Officer
(Revenue) is based on misreading and non-reading of evidence as the
respondents were co-sharers and did not turn up to join the
Writ Petition No.263-2011
3

proceedings before the Revenue Officer and District Officer

(Revenue) despite proclamation in the newspaper; that observation of
learned Member Board of Revenue that in the meanwhile a number of
transactions have taken place in favour of various bona fide
purchasers who were not impleaded as party is not supported by any
documentary evidence; that the impugned order passed by learned
Member Board of Revenue is illegal, without lawful authority,
perverse, erroneous and liable to set aside. Takes reliance upon (i)
Dilmir and others Vs. Member, Board of Revenue, Punjab,
Lahore (PLD 1991 Lahore 314), (ii) Ghulam Muhammad Vs.
Mst.Shahnaz Bibi and 10 others (1989 CLC 831), (iii) Sardar
Khan Vs. Ghulam Hussain and 31 others (2003 YLR 1788), (iv)
Misri through Legal Heirs and others Vs. Muhammad Sharif and
others (1997 SCMR 338),(v) Mst.Gulzar Bibi and 2 others Vs.
Chief Commissioner, I.C.T. and 19 others (2009 CLC 542) and
(vi) Ghulam Muhammad and others Vs. Manzoor Ahmad and
others (2006 SCMR 1534).

4. It is resisted by learned counsel for the respondents with

the contentions that Fazal Khan predecessor of petitioners No.1 to 5
had earlier asserted his ownership in the disputed land through civil
suit for declaration etc. lodged on 25.10.1993 which was dismissed by
the learned Civil Judge Chakwal vide judgment dated 05.3.1996; that
appeal was also dismissed by the learned Additional District Judge
Chakwal vide judgment dated 09.12.1999; that against the said
judgment civil revision No.186-D-2000 before this Court was
withdrawn vide order dated 16.2.2004. Further contends that
petitioners No.7 to 9 successors of Fazal Hussain had also filed a suit
for permanent injunction on 07.9.1999 asserting their Hisadari
ownership and possession on the basis of some family settlement
which was dismissed by learned Civil Judge Chakwal vide judgment
and decree dated 05.4.2004; that the said judgment and decree dated
was never assailed through appeal; that despite the above decisions of
Civil Courts upto this Court, the District Officer (Revenue) illegally
Writ Petition No.263-2011
4

allowed the correction while passing the impugned order dated

06.12.2005 and in consequence thereof mutation No.1459 was
sanctioned on 28.12.2005 against law and facts and without lawful
authority which are untenable; that even the report of field revenue
staff indicates that since the year 1939-40 up till now numerous
mutations concerning the land in dispute had been sanctioned
accruing valuable rights in favour of bona fide purchasers in
possession who were neither impleaded nor served upon with any
notice in accordance with the law denying the principles of audi
alteram partem and natural justice; that it is established principle of
law that long standing entries in the Record of Rights involving
intricate questions of title cannot be altered by the Revenue
Authorities in a summary manner; that the learned Member Board of
Revenue with application of judicious mind has rightly passed the
impugned order in accordance with law and facts; that there is no
legal infirmity or jurisdictional error in the impugned order passed by
the learned Member Board of Revenue therefore petitioners have no
case to invoke the constitutional jurisdiction of this Court. Reliance is
made upon (i) Muhammad Yousaf and 3 others Vs. Khan Bahadur
through Legal Heirs (1992 SCMR 2334) (ii) Himat alias Allah
Deya Vs. Rehmat (2004 YLR 2992).

5. Arguments heard. Record perused.

6. Petitioners raised the plea before the District Officer

(Revenue) through the application dated 11.5.2005 that certain
transactions were not correctly incorporated in the revenue record
resulting into reduction of their share in the joint khata during the
period from the year 1900 to 1939-40. The said application was
lodged by the petitioners after 65 years of the preparation of Record of
Rights for the year 1939-40. It is evident on the record that in the
meanwhile a lot of transactions have taken place in favour of various
bona fide purchasers who were not impleaded as parties at any stage
before the revenue hierarchy up to the level of Executive District
Officer (Revenue) Chakwal. There is no cavil to the proposition that
Writ Petition No.263-2011
5

section 172(2)(vi) of the Land Revenue Act 1967 bars the jurisdiction
of civil court in the matters relating to the correction of any entry in
the record of rights which exclusively falls within the jurisdiction of
the Revenue Officer, however it is pertinent to mention that
jurisdiction of a revenue officer in such a matter is determined by
section 44 of the Act 1967 ibid which manifests that if during the
preparation of any record or in the course of any inquiry under this
chapter a dispute arises as to any matter of which an entry is to be
made in a record or in a register of mutations a Revenue Officer may
of his own motion or on the application of any party interested, but
subject to provisions of section 45 of the Act 1967 and after such
inquiry as he thinks fit, determine the entry to be made as to that
matter and record his reasons thereof. It clearly manifests and
established by now that once an entry has been made in the record of
rights the presumption of truth was attached to it in terms of section
52 of the Act 1967 untill the contrary was proved or the new entries
were substituted therefor. Such presumption can only be dislodged by
having recourse through a remedy provided under section 53 of the
Act 1967 which manifests that if any person considers himself
aggrieved of any entry in record of rights as to any right which he is in
possession he may institute a suit for declaration of his rights under
section 42 of the Specific Relief Act 1877. It is well settled that
jurisdiction of the civil court is not barred to question the correctness
of the entries of revenue record. The proposition raised by learned
counsel for the petitioners has been aptly discussed and set at rest by
the Hon’ble Supreme Court of Pakistan in the case of Muhammad
Yousaf (1992 SCMR 2334). The relevant extract whereof reads
below:-

“We have anxiously considered the relevant provisions of West

Pakistan Land Revenue Act. Section 172 barred the jurisdiction of the
Civil Court in certain matters exclusively within the competence of the
revenue officers which have been enumerated in subsection (2).
Section 44 relates to the determination of disputes arising during the
course of making, revision, or preparation of record or in the course of
any inquiry under Chapter VI relating to record-of-rights and
periodical record. But once the inquiry is made or the entries recorded
 Writ Petition No.263-2011
6

in the Revenue Record, a presumption of truth is attached to it under

section 52 of the Act ibid until the contrary is proved or the new entries
are substituted therefor. To dislodge this presumption a remedy is
provided under section 53 of the said Act which provides that if any
person considers himself aggrieved by an entry in a record-of-rights or
in periodical record as to any right of which he is in possession, he may
institute a suit for declaration of his rights under section 42 of the
Specific Relief Act, 1877 Act (I of 1877). Apparently, the jurisdiction of
the Civil Courts is not ousted to question the correctness of the entries
of revenue record, or declaration of title under the Specific Relief Act,
or claiming relief of possession of immovable property, rather
aggrieved party has been invested with a right to challenge the entries
made in the Land Revenue Act through a suit for declaration in Civil
Court.”

In view of the above quoted dictum of the Hon’ble Apex

Court it becomes crystal clear that in the given circumstances of this
case District Officer (Revenue) erred in law while passing the
impugned order dated 06.12.2005 for correction of long standing
entries of the Record of Rights. Executive District Officer (Revenue)
Chakwal illegally maintained the order dated 06.12.2005 without
application of judicious mind. In view of the above learned Member
Board of Revenue taking into consideration the material facts and
relevant law in a salutary manner rightly passed the impugned order
dated 11.11.2010. I do not find any legal infirmity or jurisdictional
error in the impugned order therefore petitioners have no case to
invoke the constitutional jurisdiction of this Court.

7. Case law cited by learned counsel for the petitioners

being distinguishable on facts is not helpful to the petitioner.

8. For the above reasons this constitutional petition having

no merit is dismissed.

(Abdus Sattar Asghar)

JUDGE
Approved for reporting.

JUDGE
‘Ejaz’