2001 PLP 462 (CLC)

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑ ‑‑‑‑Ss. 9 & 10‑‑‑Constitution. of Pakistan (1973), Art.199‑‑‑Constitutional petition‑ ‑‑Consolidation proceedings‑‑‑Judgment "in pprsonam"‑‑‑Scope‑‑ Grievance of landowners was against the Consolidation Scheme confirmed by the Board of Revenue‑‑‑In earlier round of litigation, the matter was decided finally by the High Court and the order attained finality‑‑‑Revenue Authorities finalized scheme which was confirmed by the High Court earlier but the same was disturbed by the Board of Revenue‑‑‑Petitioners filed a review petition before the Board of Revenue which was also dismissed‑‑ Validity‑‑‑Judgment rendered by the High Court in earlier petition inter se the parties was judgment "in personam" and the same was binding on the parties which had attained finality‑‑‑Efficacy of the judgment could not be eroded through subsequent order passed by the Board of Revenue‑‑‑Parties were bound by the order of the High Court and they could not be allowed to reopen and reagitate the matter over and again‑‑‑Order passed by Board of Revenue subsequently could not sustain in law and the same was illegal and of no legal effect. Sheikh Naveed Sheharyar for Petitioner No.

1. Farooq Qureshi Chishti for the Remaining Petitioners. Nemo for Respondents. Consolidation Scheme of village Jandanwala was confirmed by the Consolidation Officer on 31‑12‑1981. Feeling aggrieved thereagainst, the petitioners tiled an appeal which was accepted by the Collector on 12‑1‑1983. Mohabat and Mst. Bakhtan, respondents Nos.2 and 3 respectively herein filed an appeal which was disposed of by the Additional Commissioner (Consolidation), Sargodha Division, Sargodha by making certain adjustments in the Wandas of the parties. Feeling dissatisfied with the same, a revision was filed before the Board of Revenue which was dismissed by the learned Member (Consolidation) on 6‑6‑1984 herein a finding was recorded on the basis of record that "the disputed Khasra No.2195/5 was not possessed by the petitioners and as such they had no better claim over it. They have been given 1233 Kanals, 15 Marlas in terms of Class I land as against their previous entitlement of 1233 Kanals, 14 Marlas in terms of that class. Therefore, no injustice has been done to them. Writ Petition No.3793 of 1984 was filed by the said respondents before this Court which was dismissed on 28‑8‑1984. It is not on record whether the said judgment was challenged any further by the respondents but the petitioners' case is that it was not and the matter had attained finality.

2. Mohabat respondent had also filed appeal against the confirmation of the scheme which was dismissed by the Collector on 17‑2‑1983. He filed a revision thereagainst which was disposed of by the Additional Commissioner (Consolidation), Sargodha on 14‑5‑1983 with certain adjustments. A further revision was then filed before the Board of Revenue wherein Mst. Bakhtan, respondent No.3 also joined him as the co‑petitioner and this petition was accepted by the learned Member, Board of Revenue on 23‑1‑1985. A review was filed by the petitioners which was dismissed by the same learned Member on 6‑10‑1985. These orders have been challenged by the petitioners through this petition.

3. It is contended by the learned counsel that having lost a round of litigation against the petitioners upto this Court when Writ Petition No.3793 of 1984 was dismissed, it was not open either for the respondents or the learned Member, Board of Revenue to reopen the controversy as the dispute concerning the same parties had concluded and become final. It is contended that the learned Member through the impugned order, dated 23‑1‑1985 made substantial changes in the Wandas of the parties which could not be done in the presence of the order passed by the Board of Revenue in the earlier round of litigation which order had been upheld by this Court. It is contended that the respondents deliberately suppressed the dismissal of their writ petition by this Court, from the Board of Revenue, however, when it was brought to the notice of learned Member in the review proceedings, he brushed aside the same for no cogent reasons.

4. This is one of the old cases which was listed for hearing on 18‑10‑2000, when a request was made for adjournment on behalf of learned counsel for respondents Nos.2 and 3 that he was busy before the Honourable Supreme Court of Pakistan on the said date. Accordingly the case was adjourned to 19‑10‑2000. None has, however, entered appearance on behalf of the respondents despite calls. The petitioner, therefore, has been heard ex parte.

5. There can be no dispute that the parties had an earlier round of litigation which ended with the dismissal of writ petition filed by respondents Nos.2 and 3 on 28‑8‑1984. Thus, the order passed by Mr. A.K. Khalid, Member (Consolidation), Board of Revenue was maintained. It was a Judgment "in personam" between the same parties concerning the same scheme of consolidation and had a binding effect qua the parties. In Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 987 SC 145, after noticing distinction as to a judgment "in rem" and judgment "in personam" it was held that an order of Rehabilitation. Commissioner concerning the parties and the subject‑matter which gave rise to a writ petition decided by the High Court was a judgment "in personam" whereby the parties were bound and the matter could not be later reopened nor its efficacy eroded. Keeping in view the rule so laid down in Pir Bakhsh's case, it is to be seen whether the learned Member, Board of Revenue could nullify the effect of earlier order of the learned Member, which had been maintained by this Court in writ petition mentioned above by dismissing the same which had been filed by respondents Nos.2 and

3. After chat decision when the revision petition filed by the said respondents came up before the successor Member, Board of Revenue (Malik Zawar Hussain), he changed the consolidation scheme in material terms by making substantial alterations in the Wandas of the parties, although the earlier order passed by the learned Member, (A.K. Khalid) was before him. He was exercising similar revisional jurisdiction as had' already been exercised by his predecessor. Being a functionary of co‑ordinate jurisdiction, it was neither appropriate nor legal for him to have sat on judgment over the earlier one particularly when the same had been upheld by this Court. If indeed the judgment of this Court was suppressed by the respondents from him, the same came to his notice when a review was filed by the petitioners. He could have rectified the mistake by giving effect to the judgment of this Court but unfortunately in an endeavour to maintain his earlier order, he brushed aside the same by making certain uncalled for observations. Thus, the petitioners have a legitimate grievance that the learned Member could not pass an order contrary to the one passed in the earlier round which had been upheld by this Court. Judgment dated 28‑8‑1984 rendered by this Court in writ petition mentioned above, inter se the parties was a judgment "in personam" it was binding on the parties which had attained finality. The efficacy of the same could not be eroded through a subsequent order passed by the Board of Revenue. The parties were bound by the same and they could not be allowed to reopen and reagitate the matter over again, otherwise here would be no end to litigation. Such an order, therefore, cannot sustain in law. In view of the above, this petition is accepted, orders impugned are declared to be illegal and of no legal effect. No order as to costs. Q. M. H. /M. A. K./S‑117/L Petition allowed.