2004 PLP 1833 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, has been preferred against the judgment, dated 29-5-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in a. civil revision arising out of a civil suit filed by the petitioner seeking declaration that he was exclusive owner of the suit-land, with consequential relief of correction of the entries accordingly, in the Revenue Record. The respondents contested the suit with the plea that suit-land fell to their share as a result of consolidation in the village and consequently, the jurisdiction of Civil Court was barred under section 26 of the Consolidation of Holdings Ordinance, 1960 to adjudicate the matter. The learned trial Judge having dilating upon the question of jurisdiction of Civil Court, dismissed the suit and the appeal preferred by the petitioner was also dismissed by the learned, Additional District Judge, vide judgment, dated 29-1-1994. The learned Single Judge in the High Court maintained the judgment of Appellate Court in revisional jurisdiction.

2. The learned counsel for the petitioner has contended that the petitioner having purchased the suit-land vide registered sale-deed from joint Khata in 1979, was its owner in possession and the entries in the Revenue Record in the name of respondents, having no nexus with the consolidation were contrary to the record. The learned counsel while placing reliance on Muhammad Yousaf v. Khan Bahadur 1992 SCMR 2334, argued that the High Court without attending the pivotal question involved in the matter in a proper manner and correcting the jurisdictional error, committed by the lower Courts wrongly dismissed the revision petition with observation that suit was barred under section 172 of West Pakistan Land Revenue Act, 1967 read with section 26 of the Consolidation of Holdings Ordinance, 1960. Learned counsel added that in absence of evidence on record to suggest that the disputed land was given to the respondents in consolidation, the suit ought to have been decided on merits.

3. We having heard the learned counsel for the petitioner at length and perused the evidence with his, assistance, find that there was sufficient' material on the record in support of the fact that the entries relating to the ownership of land in the name of respondents in the Revenue Record were incorporated in consequence to the consolidation of land in the village. The petitioner in the statement made by him before the trial Court stated that before consolidation he was holding land measuring 10 Kanals which was later reduced to two and half Kanals. The petitioner admitted that he challenged the order passed by the Collector Consolidation before the Additional Commissioner but did not approach the Board of Revenue against the order of Additional Commissioner (Consolidation).

4. The Additional Commissioner (Consolidation) disposed of the revision petition filed by the petitioner against the order passed by the Collector Consolidation vide order, dated 30-9-1984, with the following observations: "....during the consolidation joint and separate Khatas of the parties have been kept intact and they have been allocated 10 Kanals and 10 Marlas of land as against their entitlement of 9 Kanals and 15 Marlas. Ghulab respondent purchased 5 Kanals, 8 Marlas of land through two registered sale deeds and therefore, his entitlement has been enhanced which is the source of irrigation for the petitioner. Additionally, he has exchanged some land with other parties from his exclusive Khata and made a compact block of his holding with which the petitioner is not concerned." The petitioner pleaded before the Additional Commissioner (Consolidation) as under: "that he owned and possessed 1/4th share in the land bearing Khasra No.517 measuring 32 Kanals and 10 Marlas but during the consolidation, the respondent Ghulab etc. got 22 Kanals from his Khasra and 10 Kanals, 10 Marlas was kept in joint holding of the parties which was not only unfair but against the law on the subject." Learned counsel for the petitioner when confronted with the order of Additional Commissioner and the proposition that the petitioner instead of invoking the jurisdiction of Board of Revenue, in the matter arising out of the consolidation, filed civil suit, submitted that the land subject of suit was not connected with the consolidation and the order of Collector (Consolidation) and Additional Commissioner (Consolidation) related to the different land. We are afraid, the learned counsel has not been able to show us any evidence on record in support of the contention that the dispute between the parties arising out of consolidation, related to a different land. The petitioner has neither taken such a plea before the subordinate Courts and the High Court at any stage nor the learned counsel has been able to show us from the record that the dispute between the parties in the civil suit pertained to a land which was not subject-I matter of litigation between them before the Revenue Authorities.

5. We having considered the matter in detail, find that no exception can be taken to the judgment of the High Court wherein it has been held that due to the bar of jurisdiction contained in section 26 of Consolidation of Holdings Ordinance, 1960, the civil suit was not maintainable. The judgment of the High Court being not suffering from any illegality, would not call for interference of this Court. This petition having no substance is accordingly, dismissed. Leave is refused. M.H./N-23/S Petition dismissed.