P L D 1971 Lahore 989 (PLP)

(4) Is the suit barred under the provisions of the Land Revenue Act or Rules made there under? (5) Relief.

4. The plaintiff appeared as his own witness as P. W. 1 and produced Zinda Muhammad Patwari (P. W. 2) and Muhammad Ishaq Wasilbaqi Navis (P. W. 3). The plaintiff also tendered Dastak (Exh. P. 1) to be read with Exh. P. 1/A and copies of Roznamcha Waqiati (Exhs. P. 2 to P. 6). From the side of the defendants were produced Muhammad Ishaq Wasilbaqi Navis (D. W. 1), (same as P. W.) Fazal Elahee Patwari (D. W. 2), Abdul Majid Khan Patwari (D. W. 3) and Ghulam Muhammad Patwari (D. W. 4) and documents in the form of Exhs. D. 1 to D.

5. The learned Civil Judge held on issue No. 1 that the question regarding the acceptance of resignation of the plaintiff on 27th May 1953, was not material, as the demand in dispute was of a date prior to the alleged resignation. On factual plain, however, he held that there was no evidence led to prove that the resignation was accepted, as alleged. On issue No. 2, the finding was in the affirmative. Issues 3 and 4 were taken up together and it was held that since the plaintiff did not comply with the provisions of section 78 of the Punjab Land Revenue Act (RVII of 1887), therefore, the suit without making a prior deposit of the amount in dispute was not competent and the Court as such had no jurisdiction. After giving these findings, the learned Civil Judge by means of his judgment and decree dated the 12th of January 1956 dismissed the suit with costs.

5. The plaintiff filed an appeal but with3ut any success and the same was dismissed by the learned District Judge, Sialkot, on loth of January 1958. Issue No. 1 was not pressed in the lower appellate Court on the rest of the issues, the learned District Judge affirmed the views of the learned Civil Judge. The plaintiff has come up in second appeal to this Court.

6. It was argued by the learned counsel for the plaintiff appellant that if the claim against his client was on the ground that he had embezzled the land revenue which he realised from the various Asamidars, then the same could not be recovered as arrears of land revenue because in that event the remedy of the Government lay in proceeding for embezzlement or instituting a civil suit if so advised. Reliance for this proposition was placed on Fazal Muhammad and others v. Collector, Lyallpur District and another (P L D 1963 Lah. 485) (S. A. Mahmood and Rizvi, JJ.). As against the above, learned counsel for the defendant‑respondent raised the following two points :‑ (a) Firstly, it was argued that in the case of Fazal Muhammad and others v. Collector, Lyallpur District and another, the nature of dues which the Lambardar had embezzled were the arrears of lease money which he had received from the Government lessees (and which were recoverable as arrears of land revenue from the Asamidars concerned), while in the instant case, it is the actual land revenue itself which the plaintiff had realised and embezzeled; and (b) secondly, it was argued that in the alternative the plaintiff himself being the " land‑owner " of the "estate", regarding which the amount in dispute was due, he would even otherwise be liable under section 61 of the Punjab Land Revenue Act XVII of 1887, because the land revenue of an estate can be recovered jointly and severally from all and anyone of the co‑land‑owner.

7. As regards the point at (a) above, it does not stand established on the record that the dues in question consist solely of the land revenue. The evidence, on the other hand, is to the contrary. Abdul Majid Patwari (D. W. 3) the defendant s own witness has deposed that the dues of Kharif 1952 were not confined merely to the land revenue, but included Abiana also (which it may be pertinent to mention could be recovered as arrears of land revenue but is not land revenue itself. No effort was made to sift out as to what was the extent of the actual land revenue and how much were the other types of dues (recoverable as areas of land revenue). S. As regards the point at (b) above, it does not arise in the instant case, inasmuch as, in the two Courts below the defendant did not seek to fix liability of the plaintiff on this basis. No doubt there is discussion of the terms "land owner", "defaulter", "estate" and of the persons who are liable to be proceeded against under sections 61 and 78 of the Punjab Land Revenue Act XVII of 1887, but that was solely with reference to examining the liability as an embezzling Lambardar and not as a co‑land‑owner simpliciter. After having argued the matter at some length, the point was, however, ultimately conceded before me by the learned counsel for the defendant and I, therefore, need not go further into the same. The final position taken was that the Department was not seeking to realize the amount from the plaintiff on account of his being a co‑land‑owner in the estate irrespective of the fact whether he realised or did not realize the dues from the Asamidars. The liability was sought to be fixed solely on the ground that having realize the public dues as a Lambardar, the plaintiff was bound ‑to pay the same to the Government.

9. Anyhow, without taking the discussion any further and leaving the debate so far as the provisions of Punjab Land Revenue Act XVII of 1887 are concerned at the stage, where it rested in the case of Fazal Muhammad and others v. Collector, Lyallpur District and another. I think that since the law during the pendency of the suit‑an appeal being a continua tion of the suit‑has undergone a change, the plaintiff is not entitled to the discretionary relief of declaration which had been prayed for by him in the plaint. On 7‑t2‑1967 was promulgated the West Pakistan Land Revenue Act XVII of 1967. It brought about a substantial change on the subject in hand by virtue of its section 113, which reads as follows:‑ "

113. Recovery of certain arrears through Revenue Officers instead of by suit.‑ When a Village Officer required by rules under section 36 to collect any land revenue or sum recoverable as an arrear of land revenue‑ (a) satisfies a Revenue Officer that the revenue or the sum has fallen due and has not been paid to him, or (b) has collected such revenue or sum, but has not credited the same to Government in the manner provided in the rules, the Revenue Officer may, subject to rules which the Board of Revenue may make in this behalf, recover such revenue or sum, from the person from whom it is due, or the Village Officer by whom it was collected, as the case may be, as arrears of land revenue." This will show that whatever the position of old law, under the new law, the plaintiff can even at this stage be veil‑proceeded against by adopting the coercive machinery available for realizing the arrears of land revenue, especially, when on factual plan it was not disputed that the amount in dispute had been realised and embezzled by him. This is evident from the following passage of the trial Court's judgment;‑ "The defendant is demanding Rs. 57,00‑7‑9 from the plaintiff as a Lambardar of village Siranwali on the allegation that the plaintiff had realized this amount from the land‑owners but had not paid it in the Government Treasury. This amount relates to the land revenue of Rabi 1950 and Rabi and Kharif 1952 when the plaintiff was a Lambardar of this village. It is amply proved by the statements of D. W. 1, D. W. 2, D. W. 3 and D. W. 4 read with the dhal bachh of the period in dispute that the plaintiff had realized this amount from the land‑owners but had not paid this amount in the Government Treasury. The plaintiff has produced no evidence in rebuttal. On the contrary, he produced Muhammad Ishaq the Wasil Baqi Navis of Daska as his own witness and it is proved beyond doubt by the plaintiffs own witness that an amount of Rs. 5,700‑7-9 is due to the Government from the plaintiff for Rabi 1950 and Rabi and Kharif 1952. As such this fact stands proved beyond any doubt that the plaintiff is responsible to pay Rs. 5,700‑7‑9 to the Government as land revenue which he had recovered from the land owners of Siranwali during Rabi 1950 and Rabi and Kharif 1952 and which he had not paid to the Government. In fact the learned counsel for the plaintiff has not disputed this fact at the time of argument. The only point that has been urged before me by the learned counsel of the plaintiff at the time of arguments, is that under the provisions of Land Revenue Act, the plaintiff cannot be made liable to pay this amount to the Government as a defaulter." Same was the ‑position in the lower appellate Court. The following passage in the judgment of the learned District Judge is worth reproduction: -- "Before I take up these points, it may be stated that the learned Senior Civil Judge held that the plaintiff is responsible to pay Rs. 5,700‑9‑9 (sic) to the Government as land revenue which he had recovered from the land‑owners of Siranwali during Rabi 1950 and Rabi and Kharif 1952 and which he had not paid to Government. In fact, the learned counsel for the plaintiff did not dispute this fact in the lower Court. Before me also the said finding has not been assailed." In the memorandum of appeal filed in this Court, the above factual position and finding has not been taken exception to, which even otherwise being a finding of fact based on proper evidence is binding on the appellant in the second appeal. This A establishes that the plaintiff in his capacity as a Lambardar did realize the land revenue or sums recoverable as arrears of land revenue and misappropriated the same. Being liable to pay B that amount to the Government, he can be proceeded against under the provisions of section 113 of the West Pakistan Land Revenue Act XVII of 1967, for the recovery of that amount from him. The writ of demand‑(without deciding)‑even if could not be followed under the old law, can be followed and re issued under the new law. This will show that the declaration prayed for by the plaintiff cannot be granted to him. It is C well settled that a Court of law should not grant declaratory discretionary relief s in such cases where they are liable to be frustrated by the authorities concerned by passing a fresh order or where they will lead to injustice or clothe a suitor with an undeserving advantage or will inflict unjustified loss on the defendant. If the declaration prayed for, in the instant case, is granted, it will violate the principles hereinbefore mentioned.

10. The upshot is that this appeal has no merits. It is dismissed and since I have based my decision on a change in the law, which happened subsequent to the institution of the suit, I will leave the parties to bear their own costs throughout. Appeal dismissed.