P L D 1959 W (PLP)

(b) Colonization of Government Lands (Punjab) Act (V of 1912), S. 20 (e)--‑Death of original tenant‑Deceased leaving no nomination‑Succession. This order will be read in continuation of the reference dated 19‑7‑55, received from the Commissioner, Rawalpindi Division. The recommendation of the Commissioner is accepted for the following reasons:‑ (1) The grant was initially given to Sardar Khan. He got his younger brother Said Ahmad Khan included with him as a co‑tenant to the extent of half‑share. This happened in 1916. The Collector of the time permitted this transaction. It is not known whether the Collector was duly empowered to authorise such a transaction under section 19 of the Colonization Act. Bu A even if he was not so authorised, the transaction which took place between the two brothers in 1923 would split the tenancy into two tenancies quite validly under the Colonization Act. (2) In 1923, the two brothers partitioned the tenancy. Sardar Ahmad Khan's counsel argues that this partition mounted to transfer and could not be effected until sanction was given under section 19 of the Colonization Act. The Board of Revenue has in a Division Bench case held lately that a partition between the join tenants amounts to a change which the Collector has to permit under section 17 of the Act. The two joint tenants of a single tenancy must really be considered to be two holders of two tenancies held jointly. The partition of 1923 was therefore, valid. (3) If the original mutation of 1916 was, duly authorised by the competent authority under section 19, Saeed Ahmad Khan become the transferee from an original tenant in 1916, and the position did not change when the partition took place in 1923. A transferee‑ from an original tenant is included m the definition of "original tenant." If, however, the transaction of 1916 is not acceptable to Sardar Ahmad Khan at present, Said Ahmad Khan would be entitled to be called an original tenant on account of the fact that he was given a tenancy by the Collector in 1923, which had been given up by Sardar Ahmad Khan. (4) When Said Ahmad Khan was an original tenant at the time of his death, the succession to his tenancy must be decided under section 20 of the Colonization Act and, in my opinion must be made by the Collector under clause (e) of that section because the tenant had himself not left any nomination in this behalf. The order sanctioning the mutation in favour of Sardar Ahmad Khan, passed by an. Assistant Collector in 1950, is really not an order based on an ascertained fact. I, therefore, direct that the order sanctioning the mutation should be set aside. A fresh order should be passed on the mutation after the Collector has effected the necessary nomination under section 20 (e) of the Act. A. M. C. Order set aside.