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Civil Petition for Special Leave to Appeal No. 21/R of 1979, decided on 27th February, 1979.

(Appeal against the judgment and order dated 15‑1‑79 passed by the Peshawar High Court in Writ Petition 377 of 1977).

‑‑ S. 163(2)‑Review‑‑Petitioner not only not raising objections (as raised before Supreme Court) before functionaries of Department concerned but equity or justice of petitioner's case also not shown Petitioner ejected from land in suit in execution of a decree in 1968 and respondents thereafter continuing in possession of said land until recently when entries of such possession in revenue record changed and petitioner shown to be in possession as lessee on payment of certain amount‑No explanation forthcoming as to how and in what circumstances revenue record got changed, inference arises of respon dents having been prejudiced by action of Revenue authorities having no legal basis‑Change having been brought about through khasra girdawari in petitioner's favour‑Possessed no evidentiary value as far as title or factum of possession concerned‑Change brought about in revenue record being clearly illegal, Collector, held, fully entitled to rectify position with a view to undoing damage caused to interests of respondents.‑[Review].

Abdul Samad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 1979.

‑The dispute in this case relates to agricultural land measuring 54 kanals and 7 marlas situated in Jamal Hari Chand, Tehsil Charsadda, District Peshawar. The petitioner, Jamroz Khan who claims to be the tenant‑at‑will in respect of the said land (of which respon dents 4 and 5 are the landlords) filed a writ petition in the Peshawar High Court contending therein, inter alia, that the order dated 12‑2‑76 passed by the Assistant Commissioner, Charsadda directing the correctness of Khasra Girdawari of the year 1974 to the effect that respondents 4 and 5 were in possession of the said land, was illegal because (i) the same was passed in violation of section 163(2) proviso (ii) of the West Pakistan Land Revenue Act, 1967, (2) that the application filed before him on behalf of respondents 4 and 5 in that behalf was barred by limitation under section 163(2), proviso (b) of the said Act and (3) that he had been condemned unheard for before the passing the said order, no notice was issue to him.

The judgment of the High Court would show that when the writ petition was put up for hearing, the learned Judges of the Division Bench asked for the contents of the Collector, Charsadda (Respondent No. 3) and in reply thereto he stated that the petitioner had been ejected from the said land on 20‑4‑1968; that in proof of his ejectment, entry at Serial No. 244 dated 20‑4‑68 was accordingly made in Roznamacha Waqeati' that since the Kharif crop of 1968 to the Rabi crop of 1974 respondent Abdul Akbar was shown in the revenue record as Khud Kasht Malik' but vide order 3‑8‑74 passed by the Assistant Commissioner, Charsadda the said entries were changed and instead the petitioner was shown as lessee of the land on payment of Rs. 160 per jarib per year. However, on an applica tion made by the respondents before the Collector, the said entry made in favour of the petitioner was rectified by him vide his order dated 12‑2‑76 and the case was consigned to the record. Being aggrieved of the said order, the petitioner first went in appeal before the Additional Commissioner, Peshawar, who however, dismissed the same vide his order dated 4‑1‑77; thereafter he went in revision before the Member, Board of Revenue, N: W. F. P. but his Revision also was dismissed vide order dated 18‑5‑77. Feeling still dissatisfied, the petitioner filed writ petition in the High Court but the same was dismissed vide impugned judgment. It is in this back ground that be, has come up to this Court praying for leave to appeal against the said judgment of the High Court.

We have heard Mr. Abdul Samad Khan, the learned counsel for the petitioner. The above three contentions urged by him against the impugned order of the High Court were also urged by him in .the High Court but the same were rejected. His grievance, however, is that the learned Collector, without obtaining the prior permission of the Commissioner under sec tion 163(2) proviso (ii) under the West Pakistan Land Revenue Act, 1967, had no jurisdiction to review his previous order and consequently the order passed by him to the prejudice of the petitioner was nullity in law and of no legal effect whatever. The learned Judges of the Division Bench in the High Court have dealt with this contention of the learned counsel and held that since the petitioner had not raised any such objection before the departmental authorities, the same could not be urged by him in the writ proceedings. In support of this finding the learned Judges relied on P L D 1966 Lah. 362.

Apart from the fact that the petitioner had not raised the said objection before the functionaries of the Department, the learned counsel has not been able to satisfy us about the equity or justice of the case of the petitioner. He has not denied that in execution of a decree passed against the petitioner in the year 1968 the petitioner was ejected from the suit land and thereafter the respondents continued to be in possession thereof until 1974 when the said entries were changed in the revenue record and instead the petitioner was shown to be in possession as lessee on payment or Rs. 160 per jarib per year.

In the absence of any explanation as to how and in what circumstances was the revenue record changed in that manner, it would follow that the respondents were similarly prejudiced by the action of the revenue authorities for which there was evidently no legal basis. Furthermore, the said change in the revenue record was brought about through Khasra Girdawari recorded in favour of the petitioner which has no evidentiary value in so far as the title or the factum of possession is concerned.

In these circumstances, the said change brought about in the revenue record was clearly illegal and consequently the Collector was fully entitled to rectify the position with a view to undoing the damage caused to the interest of the respondents. Faced with this situation, the learned counsel frankly conceded that this point of which notice was not taken in the High Court, was unanswerable.

Apart from this position, there is no other evidence on record to show that the Khasra Girdawari recorded in favour of the petitioner in the year 1974 had no legal basis whatever. But in view of the finding already recorded by us the same may neither be mentioned nor taken notice of. We are therefore satisfied that the petitioner has no case either in equity or in law and, consequently, the High Court was justified to refuse to exercise in his favour the discretionary remedy of writ proceeding as the same cannot be invoked in aid of injustice.

This petition, therefore, fails and is dismissed.

Petition dismissed.

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