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Writ Petition No. 1922 of 1965, decided on 27th March 1967.

S. 118 read with S. 117‑Threefold functions of Revenue Officer in dealing with partition cases: (1) as a Revenue Officer dealing with question of partition and mode of partition as such; (2) as a Civil Court dispos ing of questions of title; and (3) as a Revenue Court disposing of questions of title within exclusive cognizance of Revenue Court.

S. 16(4) Revisional powers of Board of Revenue‑Aimed at correcting miscarriage of justice‑Revision petitions not to be dismissed on technicalities‑Board competent to entertain second Revision petition Legality of order passed on such a petition not open to challenge‑Constitution of Pakistan (1962), Art. 98‑[Chanan Singh and others v. Bishan Singh and others P L D 1950 Pb. (Rev.) 1199; Abdul Haq v. Umar Din P L D 1950 Pb. (Rev.) 1020; Subhan Ali v. Jahan Khan and others P L D 1950 Pb. (Rev.) 31 and Azizullah v. Ghulaman P L D 1950 Pb. (Rev.) 458 ref.].

S. 16(4) read with Civil Procedure Code (V of 1908), S. 115, and Punjab Tenancy Act (XVI of 1887), S. 84‑Distinction between revisional powers of Board of Revenue and those of High Court Boards powers unrestricted while High Court's powers are exercised under limitation mentioned in S. 115 of Civil Procedure Code‑Revisional powers under S. 84, Tenancy Act, 1887 akin to those possessed by High Court under S. 115 of Code.

S. 16(4) read with S. 118‑Revisional powers of Board of Revenue‑Board can interfere even at belated stag in cases of miscarriage of justice such powers are actually exercised in exceptional cases Co‑sharer in partition proceedings under S.118 deprived of whole of hissadari possession‑Fit case for interference by Board‑Decision held by High Court to be justified‑Constitution of Pakistan (1962), Art. 98‑[Azmat Ali v. Chief Settlement and Rehabilitation Commissioner P L D 1964 S C 260 not relevent].

Muhammad Nasim for Petitioner.

Nemo for Respondent No. 1

Syed Muhammad Anwar for Respondent No. 2

Dates of hearing: 17th January and 22nd February 1967.

This petition under Article 98 of the Constitution calls in question the legality of a revisional order of the learned Member, Board of Revenue (hereinafter to be referred to as the Member), dated the 23rd of September 1965, whereby the revision petition filed by Wali Muhammad respon dent No. 2 was accepted and the mode of partition of the joint khata of Khair Din petitioner, respondent No. 2 and others was amended.

2. The facts giving rise to the case briefly are that Wali Muhammad respondent No. 2 and his deceased brother Ali Muhammad, jointly held land along with other share‑holders in khata No. 8, measuring 1462 kanals 6 marlas in village Gharhi Bela tehsil Sadiqabad, district Rahimyarkhan. The extent of the shares of the two brothers has been mentioned as 195/1920 each, measuring 146 kanals 13 marlas in each case. On the death of Ali Muhammad, his share devolved on his son Muhammad lqbal, who on 14th of January 1946 transferred the same in favour of Khair Din petitioner by means of a registered sale‑deed, and the land was accordingly mutated in his name in the revenue record. Respondent No. 2 who was also cultivating the share of his nephew Muhammad Iqbal, feeling aggrieved by this sale filed a declaratory suit which was dismissed by the Senior Civil Judge Rahimyarkhan on 16th September 1960. His appeal also met the same fate and was dismissed by the District Judge on 17th of November 1960. It appears that having thus failed Wali Muhammad respondent No. 2 attorney to Kbair Din petitioner, but soon a dispute arose between them over the share of produce and payment of rent which again led to 3itigation. Feeling disgruntled, Khair Din petitioner ultimately on 1st March 1961, filed an application under section 111 of the Punjab Land Revenue Act seeking partition of his share in the joint holding. Respondent No. 2 tried to resist the partition in two ways. In the first instance he made a statement (Annexure'L') on 24th May 1961 before the Naib Tahsildar (Assistant Collector) that his case was pending in the High Court and that the joint khata should not be partitioned till the decision of his case. He further added that he was opposed to the partition of the khata, and that the area sought to be partitioned was in his possession. A certified copy of this statement is Annexure 'A' on the file. Subsequently, on 16th June 1961, he filed an application before the Tahsildar Sadiqabad, alleging that the partition proceedings were all bogus in which fictitious persons had been appearing before the Assistant Collector in place of the share‑holders of the khata. A prayer was also made for an investigation of these allegations. However, in the course of the partition proceedings the parties were summoned by the Assistant Collector for 14th of December 1962, and on his refusal to accept notice the Patwari axed the same on the door of Wall Muhammad in his presence as would be clear from the statement of Nazir Ahmad Patwari (Annexure 'C'). Consequently, on the basis of ex parte proceedings against the respondent, the partition was finalised on 15th of October 1963, and the relevant mutation in this regard was sanctioned on 27^th of December 1963. Wali Muhammad respondents No.2 did not challenge the proceedings by filing an appeal within the prescribed limitation, but on 12th of May 1964, filed a time‑barred revision before the Collector which was forwarded to the Additional Commissioner on 30th of June 1964. The learned Additional Commissioner before proceeding to dispose of the revision petition, summoned detailed reports from the Tahsildar and the Sub‑Divisional Magistrate, Sadiqabad which are res pectively Annexures 'F' and 'G' on the file, and it was on the basis of these reports that he finally on 24th of February 1965, dismissed the respondent's revision petition both on grounds of limitation as well as on merits, in an ex parte order as the res pondent though present earlier was absent at the time when the case was called. The respondent then filed a second revision before the learned Member who accepted the same vide the impugned order dated the 23rd of September 1965, giving rise to the present writ petition.

3. The considerations which appear to have weighed with the learned Member seem to be twofold; firstly, he was not satisfied as to the justifiability of the ex parte proceedings against respondent No. 2, who was the petitioner before him, and secondly, the entire area which was in the joint cultivation of the respondent and his nephew Muhammad Iqbal vendor had been given to Khair Din the present petitioner. The submission of Wali Muhammad that he wanted to have his own land separated from that of the other co‑sharers also found favour with the learned Member and in order to appreciate the correct position the following portion of the impugned order may be usefully reproduced:‑--

"In order to save further litigation so far as the petitioner is concerned, it would be desirable that Killa numbers which should be given to him should be specified. In Khatauni No. 89 of Jamabandi for 1954‑55, the area under the joint cultivation of Muhammad Iqbal and Wali Muhammad petitioner was 144 kanals. The petitioner has already got 64 kanals out of his hissadari possession. He is entitled to 80 kanals more. It is, therefore, only fair that this joint holding should be divided between the petitioner and respondent No. 1, Khair Din in the ratio of 4:5. In doing so, the following considerations have been kept in view:

(a) each of them should get equitable share of Chahi, Nehri, Banjar Jadid and Banjar Qadim land; and

(b) the petitioner should be given a compact block.

Keeping these things in view, I accept the revision and direct that:‑--

(a) the petitioner will retain the whole of the land which was in his hissadari cultivation and mentioned in Khatauni No. 88;

(b) out of the area mentioned in Khatauni No. 89, he will get killa Nos. 2, 3, 4, 9, 8, 7, 12, 13, and the northern half of killa No. 18 of sq. No. 149/12;

(c) the rest of the area in this Khatauni shall be given to Khair Din;

(d) kills No. 23 of sq. No. 149/10, killa Nos. 15 and 17 of sq. No. 169/6 shall also be given to him; and

(e) the rest of the area will be given to him from the khata which has so far remained as joint. This, of course, will be done after taking into consideration the views of respon dent Khair Din and other co‑sharers but the area allotted to the petitioner shall not be touched.

It might be added that it would be open to the revenue officers below to make such adjustments in the area given to Khair Din respondent as may be agreed to by him while his share from other co‑sharers is being taken away."

4. The learned counsel for the petitioner raised the following contentions before us:----

(1) That respondent No. 2 being fully aware of the partition proceedings had failed to avail of the legal remedy of an appeal provided under section 13 of the Land Revenue Act, and only filed a hopelessly time‑barred revision which had rightly been dismissed by the Additional Commissioner both on merits as well as on grounds of limitation; and as such, the learned Member had erred in law in entertaining a second revision;

(2) that the learned Member had not applied his mind to the question of limitation which had been raised before him, and gave no reasons for condonation of delay in filing the first revision petition;

(3) that none of the grounds, namely, excess of jurisdiction, failure to exercise jurisdiction, existence of illegality or material t irregularity were available to the learned Member to justify his interference in revision in the case; and

(4) that the learned Member had gone out of the way to grant a relief to respondent No. 2 for which he had never asked, namely separation of his land.

5. We now proceed to consider these contentions seriatim. It is evident from the record that the partition proceedings were finalised on 15th of October 1963, and the relevant mutation in this regard was sanctioned on 27th of December 1963 but no appeal was filed. It is important to note that in the course of partition proceedings a revenue officer may be called upon to perform threefold functions acting in three different capacities. Firstly, he acts as a revenue officer, when he has either to disallow the partition or adopt a certain mode of partition or decide other allied questions regarding the area to be excluded or included. Secondly, while deciding the question of title within the cognizance of civil Court, he has to act as a civil Court. Thirdly, while deciding question of title within the exclusive cognizance of revenue Courts, he has to act as a revenue Court. The three different categories of orders passed by a revenue officer are also distinguishable for the purposes of appeal, review or revision and since the relevant Kh order in this case allowing partition passed by the Assistant I. Collector related to the first category, an appeal lay to the Collector under section 13 of the Land Revenue Act, within the limitation of thirty days prescribed under section 14(a) of the Act. Admittedly no appeal was at all filed, and as such it is not a case of the entertainment of a time barred appeal but one in which without filing an appeal at all a revision was straightway filed and dismissed in the first instance on ground of limitation as well as on merits. It may also be borne m mind that besides the general provisions relating to appeals under section 13 of the Land Revenue Act, different provisions for filing of appeals against different orders passed at different stages of partition proceedings have also been made under sections 1.17 and 118 of the Land Revenue Act, but none of these was invoked in the instant case till the instrument of partition was prepared and proceedings for delivery of possession had also been finalised.

5‑A. We have not been able to lay our bands on any authority directly applicable to the case. However, some rulings of the Financial Commissioners, the predecessor‑in‑office of the Member, before the constitution of the Board of Revenue and as such, the highest authority in the hierarchy of the Revenue Department are available, which have some pursuasive value and may be taken note of. The Financial Commissioner interfered in revision to rectify a gross miscarriage of justice in Chanan Singh and others v. Bishan Singh and others (P L D 1950 Pb. (Rev.) 1199), is an appealable case although no appeal had been preferred. In Abdul Haq v. Umar Din (P L D 1950 Pb. (Rev.) 1020), a revision from a mutation order was entertained on grounds of justice although no appeal had teen filed. In Subhan Ali v. a an Khan and others (P L D 1950 Pb. (Rev.) 31), a revision was held to be compe tent in case no appeal had been preferred against a defective mode of partition. In this case both the judgments cited earlier were considered and the following observation of the learned Financial Commissioner may be with a van commissioner's power of revision tinder the Punjab Land Revenue Act is unlimited and there can be no denying the general proposition that the Financial Commis sioner may‑interfere when no appeal has been presented on the ground that the original order was bad on merits. But then it is ors a grave miscarriage of justice" are in themselves dangerous words. Every order wrong on merits is a miscarriage of justice and gravity is only a question of degree and opinion. Every case in which the Financial Commissioner's powers of revision are invoked when the limitation for appeal has expired should be most rigorously scrutinised in the light of the precedent which would be set up if the application were admitted."

Again, in Azizullah v. Ghulaman (P L D 1950 Pb, (Rev.) 458) it was held that "though normally, the Financial Commissioner will not entertain in the guise of revision what is to all intents and purposes an appeal in a case where no appeal lies, yet the wide powers of revision are clearly intended to be used in exceptional cases when failure to interfere at a preliminary stage would result in prolonged proceed ings which must be infructuous in the long run e.g., an order sanctioning review of a mutation order effected several years ago and incorporated in jamabandi." Two things clearly emerge from these rulings, firstly, that the revisional powers of a reviewing officer under the Land Revenue Act are vast and unfettered and secondly, they should be cautiously and exceptionally used. As regards Act the question of limitation, admittedly the Land Revenue has prescribed no limitation for revision and normally the limitation of ninety days prescribed for appeal has been conventionally applied to revisions before the Board of Revenue, but authorities are not wanting were time has been extended in certain cases for sufficient cause. Although the learned Member did not expressly mention the question of limitation but in the impugned order, while speaking of technicalities, he impliedly referred to the same as would be abundantly clear from the following observation:‑

"The learned counsel for the respondent has contended that the second revision should be rejected on the technical grounds However, the circumstances of the case are such that technical considera tion should not be allowed to stand in the way of the consideration of the revision on merits."

Whether one may agree with the learned Member or not in this behalf he was undoubtedly of the firm opinion that it was a case of miscarriage of justice which warranted interference in exercise of his revisional jurisdiction and that the revision should not be dismissed on technicalities. We are of the considered opinion that there is sufficient warrant for such a view which can be clearly spelt out from the language of the relevant provisions contained in section 16 of the Land Revenue Act, reproduced below:‑

"16. (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer, subordinate to him.

(2) A Commissioner or Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.

(3) If any case in which a Commissioner or Collector has called for a record he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner.

(4) The Financial Commissioner may in any case called for by himself under subsection (1) or reported to him under subsection (3) pass such order as he thinks fit:

Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordi nate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard."

It is hardly necessary for us to mention in this context that the powers vested in the Financial Commissioner under the Land Revenue Act now completely vest in the Member Board of Revenue under the Board of Revenue Act of 1957. The upshot of the discussion therefore is that it was competent for the Member Board of Revenue to entertain a second revision and as such the legality of the impugned order is not open to challenge on the score. This disposes of the first two contentions.

6. Coming now to the third contention, we have no hesita tion in straightway observing that this is wholly misconceived, inasmuch as, the learned counsel seems to have confused the provisions contained in section 16 of the Land Revenue Act with those of section 115 of the Code of Civil Procedure, empowering the High Court to call for the record of any case decided by a subordinate Court. In the earlier part of this judgment, we have already reproduced the former provision which does not envisage any of the three situations justifying the High Courts, interference in exercise of revisional jurisdiction, namely, excess of jurisdiction failure to exercise jurisdiction and illegal exercise of jurisdiction or with material irregularity. Under subsection (4) of section 16 of the Land Revenue Act, the Financial Commissioner and now the Member Board of Revenue, after having called for the record of any case pending before or disposed of by any subordinate Court has vast and unfettered powers to pass such an order as he thinks fit and the only restriction imposed on the formality to be observ ed before passing such an order is that the persons affected should be given an opportunity of being heard. There is thus a clear distinction between the revisional powers of the Member under section 16 of the Land Revenue Act and of the High Court under section 115, C. P. C. The powers of the former are unrestricted and more extensive than those of the High Court under the latter provision. The revisional powers vested in a Member under section 84 of the Tenancy Act are significantly enough more akin and analogous to those of the High Court under section 115, C. P. C. and are subject to same limitations and restrictions. Unlike the latter provisions, the power of the Member to summon the record of a case is not confined to decided cases in which an appeal lies, but on the contrary he can call for the record of any case pending before or disposed of by a subordinate revenue officer and furthermore, the exercise of his revisional powers is not subject to any of provisions contained in parts (a), (b) and (c) of section 115 of the Code of Civil Procedure. In view of this finding the contention is repelled as being misconceived.

7. It is true that in the course of partition proceedings, respondent No. 2 had not asked for the separation of his land from the joint khata by partition. But on the contrary in his statement before the Assistant Collector (Annexure 'A'), he preferred a joint khata with a view to resist the petitioner's claim for partition. Nonetheless, such a prayer can clearly be spelt out from the grounds of revision Annexure 'I'. In fact, he had made a threefold grievance as would be clear from the concluding paragraph 7 of the memorandum. Firstly, that the partition proceedings were taken ex parte; secondly, that his possession had not been respected, and thirdly, that his share had been kept joint with other co‑sharers and banjar land had been given to him. Once the entertainment of the revision is held to be admissible and limitation is condoned, this objection of the learned counsel loses all its force. The basis of the order of the Additional Commissioner Annexure H', whereby the respondent's revision petition was dismissed on merits as well as on ground of limitation is the report of the Tahsildar Annexure'F'. But it is evident from this report that the respondent had made a grievance in an application dated the 30th of July 1964, that he had been deprived of the land in his possession which he had made culturable and had improved at considerable expense, and that he bad been given instead barren and banjar land. It would be pertinent in this context to peruse the following extract from the report which when rendered into English would read thus:

"In compliance with the order of the Additional Commis sioner, Bahawalpur dated the 1st August 1964, 1 have carefully perused the partition record of khata No. 8. The partition proceedings were taken in a perfectly proper and legal manner. The complaint of the petitioner that he had been given unculturable banjar land of other share‑holders instead of the culturable land in his possession, which had been given to others could have been looked into by the revenue Officer, if the petitioner had appeared at the proper time and raised his objections. At no stage of the partition proceedings did Wali Muhammad appear before the Naib Tahsildar, nor did he ever present his objections before him. In these circumstances, the objections of Wali Muhammad petitioner are useless. If, however, he takes exceptions to the proceedings of the Revenue Officer, he can have recourse to a civil Court for the safeguard of his rights."

The next report of the S. D. M. Sadiqabad (Annexure G') also makes a reference to the allegations of Wali Muhammad in his statement before this Officer that he had reclaimed 18 acres of land which had been forcibly taken away from him, and given to Khair Din. The burden of the two reports, however, is that since Wali Muhammad did not pacer participate in the partition proceedings and took no steps to challenge the correctness or legality of the proceedings by filing an appeal he was not entitled to any relief at this late stage when proceedings had already been finalized and the instruments of partition had also been prepared on a stamped paler of the value of Rs. 112'50. It is, however, evident from these reports that‑the allegations of Wali Muhammad that all the 18 acres of land in his possession had been given to Khair Din petitioner were factually correct. This position was re‑affirmed by the learned Member as would be clear from the following observation made by him in the impugned order:‑‑

"The whole of the area which was in the joint cultivation off the petitioner and Muhammad Iqbal has been given to Khair Din. Wali Muhammad petitioner was also entitled to claim a portion of this khata as co‑sharer cultivator. This basic right has been denied to him."

Having already conceded the competence of the Member Board of Revenue to interfere even at a belated stage in exercise of revisional jurisdiction, in a case of miscarriage of justice we are inclined to think a in view of the above finding of the fact the learned Member was perfectly justified in undoing a wrong and to see that it ,was not perpetuated. Being fully conscious of the fact the a revisional to be exercised only in exceptional circumstances, we are convinced that the circumstances of the case called for their exercise in the interest of justice, notwithstanding the fact that Wali Muhammad had tried to resist and even obstruct the partition proceedings. Further support is lent to this view from the following observation made by the learned Members towards the conclusion of the third paragraph of his order:‑

"I, however, find that in the report of the Naib‑Tahsildar at page 58, the note about ex parte proceedings is given in different ink. Again at page 71, the mention about ex parte proceedings against the petitioner is given in different ink."

It appears to us that the learned Member had taken great pains in scrutinising the entire record including Aks Shajra, and while directing a fair division of the joint holding between the petitioner and the respondent, had guaranteed to them an equitable share in all categories of land, i.e., Chahi, Nahri, Banjar Jadid and Banjar Qadim, leaving of course enough scope for the revenue officer to make on the spot adjustment as would be agreeable to the parties. The authority Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (P L D 1964 S C 260) relied upon by the learned counsel for the petitioner appears to us neither applicable nor helpful. This was a case decided by the High Court in writ jurisdiction. It was observed by their Lordships of the Supreme Court:‑--

"In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court, no doubt, has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal."

This dictum of their Lordships has patently no relevancy to this case besides being hedged in by several conditions, which are not satisfied in the instant case.

8. For the foregoing reasons; the petition fails and is hereby dismissed. The parties are, however, left to bear their own costs.

A.H. Petition dismissed.

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