P L D 1960 W (PLP)

This is a revision petition, presented as an appeal, against the order of Additional Commissioner, Multan Division, dated 20‑1‑1959, upholding the order of Collector, Montgomery, dated 14‑6‑1958, by which the latter sanctioned a pathway on the West of Killas Nos. 1, 10, 11, 20 and 21 of Square No. 46 (old) in favour of Fateh Muhammad respondent.

2. The respondent has portions of rectangles Nos. 56 and 57 (old) and there is no denying the fact that he needs a pathway southward from the abadi of the village. The pathway in dispute was actually suggested by the Kanungo of the circle after inspect ing the site and it is the shortest route to the lands of the respon dent. The petitioners, however, suggested a pathway in continuation of an existing one through; some of their Killas in square No. 56 (old). This route is definitely longer than the one suggested by the Kanungo and approved by the Collector and upheld by the Commissioner.

3. The learned counsel on behalf of the petitioners contends that the Collector has no right to create a new pathway ie what is now proprietary land. The Collector, however, has relied, for creating this pathway, on condition No. 5 of the ‑ deed of convey ance by which proprietary rights have been conferred on the petitioners in the land. This condition is as follow:‑ "(5) Government reserves the right to create a public right of way not exceeding three karams in width across the land whenever this may be considered desirable in the public interest by the Collector." This point of the learned counsel is that the above reservation is incompatible with the conferment of proprietary rights and must, therefore, be ignored under section I 1 of the Transfer of Property Act. Section 11 no doubt disallows any reservation which conflicts with the vendee's interest in an absolute estate. But this is not the case here. Schedule II to section 30 of the Colonization of Government Lands Act, which defines the conditions applicable to grantees who acquire proprietary rights, opens with the words :‑ "The Crown does not grant to the grantee but hereby abso lutely excepts and reserves to itself out of land in respect of the said lands or any part thereof already marked out, excavated or otherwise utilized for the distributory channels, and (2) all existing rights to and over all mines and minerals, coals, gold washing, earth‑oil and quarries in or under the said lands or any part thereof, together with all easements heretofore enjoyed by the Crown in respect of the said lands or any part thereof and it likewise excepts and reserves the right of the public to use existing thorough fares traversing the said land or any part there of including a width of 1 qadams on either side of survey base line, and also any lines of road which though not yet made, have been marked out upon the grounds . . . . . . It follows that what the grantees obtained was not an absolute estate but an estate minus interests excepted and reserved under Schedule

11. Further, the scope of transfer was also restricted by condition No. 5 of the deed of conveyance. Section I1 of the Transfer of Property Act does not apply to such cases, and condition No. 5 of the deed of conveyance is legally valid and enforceable. The learned counsel has cited some High Court decisions in support of his contention; but, again, these decisions are not pertinent because they all relate to dispute arising out of the transfer of an absolute estate.

4. Another contention raised on behalf of the petitioners is that the pathway is not a public thoroughfare. This contention also is not correct because the pathway has not been, created for the exclusive use of the respondent and is, in effect, a public thoroughfare.

5. Actually the petitioners' interest is not involved to any large extent in the creation of this pathway and it is strange that the petitioners, while ready to give a right of way through their Killas on the west of square No. 56 (old), object to the shorter pathway created by the Collector. The dispute seems to me entirely due to their strained relations. The revision petition is dismissed. Parties to be informed. A. H. Petition dismissed.