2011 PLP 1425 (YLR)

CH. MUHAMMAD TARIQ, J.--This writ petition has been directed against the order dated 31-12-2008 passed by Member (Judicial-V) Board of Revenue, Punjab.

2. Brief facts of the case as mentioned in the writ petition are that the petitioner purchased the land vide registered sale deed dated 16-4-1939 from respondent No.3 in the capacity of attorney of respondents Nos.4 to

8. The said land falls within the area of Mauza Niaz Beg and the land of this Mauza was mixed in the land of Mauza Hanjerwal and Shadiwal and was not distinguishable separately. This type of land is termed as "Khapat Bun" in consolidation of land language and due to this certain complexities arise. For determination of, land of Mauza Niaz Beg the work of consolidation by the Revenue authorities was started in 2nd half of 1960. By permission of the Board of Revenue, the work of separation of land of all there Mauza i.e. Niaz Beg, Hanjerwal and Shadiwal was completed and the same got approval from the Board of Revenue on 29-9-1977. As per the law requirement when the consolidation proceedings or preparation of preliminary record was under process, no land is allowed to be transferred to avoid any complexity in the regard.

3. The respondent No.2 filed a revision petition dated 25-9-1996 against the present petitioner and 18 others before the learned Addl. Commissioner, (Consolidation) Lahore, stating therein that one Farzand Ali was owner of land in Mauza Niaz Beg, bearing old Khasra. No.644. Farzand Ali sold land 11 kanals and 1 marla to one Muhammad Shafee son of Imam Din through registered sale deed dated 14-12-1966 and accordingly the Mutation No.2810 was sanctioned. In the Khatoni of consolidation one Muhammad Shafee son of Imam Din was shown as owner of old Khasra No.644 but when the consolidation was approved on 29-9-1977, the khata of Muhammad Shafee was not maintained and' said Muhammad Shafee sold this land to respondent No.17 of this petition. The respondent No.17 further sold the same to respondents Nos.18 and 19 on 3-11-1976 who further alienated the suit-land to respondent No.2 on 29-6-1977 and the Jadeed Khasra No.8829 came into existence.

4. During the consolidation proceedings, the Jadeed Khasra was transferred to respondent No.10 who further transferred the same to respondents Nos.15 and

20. The cause for instituting the lis was that the respondent No.4 filed an application before the Collector that in the consolidation proceedings lie has been deprived from' his entitlement and the Collector vide order dated 25-8-1990 has granted the Jadeed Khasra No.8829 to respondent No.4 comprising of 11 kanals and 2 marlas. The respondent No.2 challenged the order dated 25-8-1990. The present petitioner also filed his written reply to said revision, denied the contentions of the respondent No.2 and placed the original and actual position before the learned forum, who decided the said petition in favour of the respondent No.2 vide order dated 23-12-1997. The present petitioner assailed the said order in the ROR No.107 before the respondent No.1 who dismissed the said ROR No.107 vide order dated 31-12-2008.

5. Learned counsel for the petitioner contends that respondent No.1 did not decide the matter in accordance with law. The alleged change of Jadeed Khasra No.8829 from old Khasra No.644 and Mutation No.2810 can be solved by the report of Field Staff of Consolidation of Land, but respondent No.1 failed to appreciate the same. The confirmation of Mutation No.2810 is a mistake of law. The respondent No.1 was duty bound under the law to determine the entitlement of the parties instead being influenced by the possession of respondent No.2.

6. Learned counsel further contends that Farzand Ali has sold its all entitlement during the consolidation proceedings and before decision. The suit-land has not been identified as to where does it exist. The suit-land was transferred during proceedings of consolidation i.e. 1972 through registered sale-deed, but sale deed was not incorporated in the revenue record and as such there is no entry of transfer of holding in the revenue record. Therefore, writ petition be allowed, order dated 31-12-2008 passed by respondent No.1 in ROR No.107 of 1998 be declared illegal, un-lawful, in-effective upon the rights of the petitioner and the order dated 25-8-1990 be restored.

7. Conversely, learned counsel for respondents has vehemently opposed this writ petition and has contended that the answering respondents are owner in possession of suit property on the basis of registered sale deed which were never challenged by the petitioner. The answering respondents after the purchase of suit property firstly constructed Poultry Form and thereafter a Plastic Factory. The possession of the answering respondents is admitted. The suit-land does not fall within the definition of land because at present the category of agricultural land has been changed into constructed property. The same grounds were agitated by the petitioner before the respondent No.1 and also before Commissioner who have decided the matter in favour of respondent No.2 after perusal of record and hearing lengthy arguments which have attained finality. In the circumstances, this writ petition is not proceedable and is liable to be dismissed.

8. Arguments heard. Record perused.

9. Paras Nos.8 and 9 of the writ petition are important in this behalf which are re-produced as under:-- (8) "That one Farzand Ali was owner of land in Mauza Niaz Beg and their land falls in the .Old Khasra No.644 and from that land the one Farzand Ali had sold land 11 kanals and 1 marla to one Muhammad Shafee son of Imam Din through registered sale deed dated 14-12-1966 and the mutation No. was 2810 in this regard. (9) That in the nnatoni or consolidation one Muhammad Shafee son of Imam Din was shown as owner of old Khasra No.644 but when the consolidation was approved on 29-9-1977, the khata of Muhammad Shafee was not maintained and this Muhammad Shafee sold this instant land to respondent No.17 of this petition and the respondent No.17 sold the same to respondents Nos.18 and 19 on 3-11-1976 and these respondents Nos.18 and 19 sold this land to respondent No.2 on 29-6-1977 and the Jadeed Khasra No. 8829 is on spot."

10. The petitioner has admitted the possession of suit-land with the respondent No.2 and has also admitted that the respondent No.2 purchased the suit-land through registered sale deeds which were never challenged by the petitioner, despite the fact that the factum of purchase of suit-land in favour of answering respondent was in the knowledge of petitioner. The contention of the petitioner that the sale-deeds have not been incorporated in the revenue record, is of. no consequence because a mutation is not a proof of title but it is a simple evidence that a transaction took place between the two parties, while a registered sale-deed is a proof of title unless that is declared illegal and is cancelled by a competent court of law. Since the ownership having been transferred through registered sale-deed, therefore, non-inclusion of such transfer in revenue record would make no difference and such fact would not make the ownership doubtful. Entries in revenue record were for fiscal purpose only. Though, the presumption of correctness is attached to entries of revenue record, but more stronger proof is in the shape of registered sale-deed. In the instant case, the respondent No.2 claims the ownership on the basis of registered sale-deed. A subsequent entry of attestation of mutation on the basis of sale-deed was a mere formality in incorporation of registered sale deed in the revenue record. As law laid down by the Hon'ble Supreme Court of Pakistan in case reported as "2004 SCMR 1701" and "1995 CLC 1843".

11. The record reveals that the petitioner has raised objection about the identity of suit-land but when confronted, learned counsel for the petitioner has not disputed this fact that the petitioner never made an effort to get the suit-land demarcated by the competent forum. During arguments, it is also revealed that previously the answering respondent No.2 filed a suit for permanent injunction against the petitioner with the prayer that the petitioner be restrained from interfering in the peaceful possession of the respondent No.2 over the suit-land which was decreed by the civil court and the decree of civil court in favour of answering respondent was never assailed in appeal or revision by the petitioner. The contention of learned counsel for the petitioner that vide order dated 25-8-1990, the Consolidation Officer/ A.C-II, allowed the review of mutation which was accordingly reviewed, is also mis-conceived because this order was challenged before the Commissioner who vide order dated 13-12-1997 set aside the order dated 25-8-1990 and the order of Commissioner attained finality because it was not further assailed in appeal or revision before competent forum.

12. Learned counsel for the petitioner has failed to point out any illegality in the impugned order. Resultantly, this writ petition is dismissed being without any merit. S.A.K./A-245/L Petition dismissed.