P L D 1961 W (PLP)

RAJA SHAFI ULLAH‑Respondent Appellate Side No. 38 of 1960‑61 decided on 22nd June 1961, District Gujrat. (a)Lambardar‑Appointment‑Hereditary claim-Colony Chak-Proper criterion for determining whether Lambardari is hereditary or not qua claimant should be with reference to condi tions prevailing during time of deceased Lambardar. Ghulam Muhammad v. Abdul Hamid P L D 1958 W. P. (Rev.) 40 not fol. (b)Lambardar‑Appointment ‑Absentee in absence of excep tional circumstances generally should not be appointed. This case relates to the Lambardari of Chak No. 34 Tehsil Phalia, District Gujrat. The last Lambardar died on 12‑1‑1959, when it is urged that a major part of the estate was still owned by Government. The Collector accordingly proceeded to make the appointment under Land Revenue Rule 17 (I) i.e., as if it were a non‑hereditary appointment, and selected Major Sultan Sikandar Hayat Khan. The learned Additional Commis sioner, however, held that the Lambardari was hereditary in character, as he privately owned a major part of the estate, i.e., at the time of consideration of the appeal. In this con nection he relied on Ghulam Muhammad v. Abdul Hamid (P L D 1958 W. P. (Rev.) 40) in which my learned predecessor Mr. M. Z. Khan expressed the view that taking into consideration the facts which existed at the time 'the Lambardari became vacant would lead to an anomalous position. It is possible that at the time of the death of the Lambardar proprietary rights might have been obtained in a negligible area while by the time the Collector passes his order proprietary rights might have been acquired in' the entire estate. With due respect I am not inclined to agree with this view. If a person has to rely on hereditary claims it would obviously be with reference to facts as they existed in his prede cessor's time or at best at the time of his death. On the contrary it seems anomalous to me that changes, which have subsequently taken place, should be allowed to be taken advantage of by a person who claims a Lambardari on the principle of heredity. Thus in my humble opinion the correct and proper criterion for assessing whether a Lambardari is hereditary or no qua a claimant should be with‑reference to the conditions as they prevailed during the time of the person from whom the heredi tary right is claimed, i.e., of the deceased Lambardar If this principle is foil wed the position admittedly is that Government owned a major part of the estate even if un cultural area etc., is excluded from the calculations. I have no doubt that the principle followed by the learned Additional Commissioner is not correct Another point which has been argued b.‑fore me is that the appellant is an absentee from the estate being employed as a Major in the Army. He is admittedly in his youth being 3 years old sited has evidently a long career in the armed forces. It would evidently be inadvisable to appoint a person who would not be able to undertake personally the duties of Lambardari for a number of years to come and will have to work through a Sarbrah. Generally speaking unless there are exceptional circumstances" and .the person selected is so outstanding as to outweigh the consideration of personal discharge of duties ordinarily his appointment should not be made. The learned counsel for the appellant has not been able to make out ant exceptional case of this kind. In my opinion the Collector should proceed with making the appointment afresh following the principles of Land Revenue Rule, rule 17 (1) i.e., considering the appointment to be non‑hereditary in character. He should also keep in mind the other observations made by me. The appeal stands accepted to the above extent. K. M. A. Appeal accepted.