1992 PLP 2057 (MLD)

A.G. Chaudhry for Respondents Date of hearing: 18th April, 1990. This revision petition is directed under section 13 of the Consolidation of Holdings Ordinance, 1960, against the order dated 22‑10‑1989 of the Additional Commissioner (Cons.) Sargodha Division whereby he accepted the appeal of the respondents.

2. Brief facts of the case are that the Consolidation Scheme of the village Bhango Gharbi; Tehsil Shorkot, District Jhang was confirmed a/s 10(3) of the Ordinance ibid by the Consolidation Officer on 8‑3‑1989. The petitioners, feeling aggrieved, filed an appeal in the Court of the Collector (Cons.) who vide his order dated 4‑7‑1989 re‑joined the wandas of the parties, holding that the partition of the Khata was against the instructions of the Board of Revenue. This order was assailed in the Court of the Additional Commissioner (Cons.) Sargodha Division who vide his impugned order accepted the appeal holding that the petitioners had never claimed an inch of land from the respondents in the appeal and they did not have any case of previous possession on land but only they wanted to safeguard their pre‑emption litigation. Due to the Supreme Court ruling regarding the rights of contiguous landowners and the statement of the counsel of the respondents that they will not claim any benefit due to the partitioning of khata in the pre‑emption litigation, the learned Additional Commissioner (Cons.) restored the original Consolidation Scheme. Hence this revision petition.

3. The learned counsel for the petitioners contended that the parties had a joint khata prior to consolidation and petitioner had preferred a pre‑emption suit against the respondents on the point of co‑sharing. The petitioners were opposed to the partition of the joint khata during the consolidation operations but the khata was partitioned fraudulently by the consolidation staff in connivance with the respondents. None of the co‑sharers had given their consent to the partitioning of the khata but the signatures of Ashfaq Hussain petitioner were forged and column No. 5 of Register Scheme at Scheme No. 309 was badly. mutilated. On coming to know of the fact the petitioners preferred an appeal before the Collector (Cons.) which was accepted and the joint khata was restored. However, the Additional Commissioner (Cons.) re instated the original scheme on the misconceived ground of right of contiguous owners in pre‑emption suits. The Lahore High Court in R.F.A.No.95/1987 decided on 19‑12‑1989 had held that the qualification of contiguity could not be permitted to be brought in to save the pre‑emptor and dislodge a bona fide vendee of the property. The petitioners' suit was based, as stated earlier, on the qualification of co‑sharing and the petitioners would suffer an irreparable loss if the impugned order, which was against the law of consolidation, was not set aside. The petitioners relied on PLD 1975 Lahore 228; PLD 1989 Revenue 14; PLD 1982 Revenue 1 and PLD 1981 Revenue 20 in support of their arguments.

4. The learned counsel for the respondents contended that the entitlement of petitioners was not affected at all by partitioning of the khata. Ashfaq Hussain petitioner had signed the scheme in token of its acceptance and, therefore, he had no right of appeal. The respondents had purchased the disputed land from a collateral ‑of the petitioners in 1973 and had applied for partitioning. of the khata during the consolidation operations. The respondents' counsel Was not heard When the petitioners ' appeal was taken up and decided by the Additional Deputy Commissioner/Collector, Jhang on 4‑7‑1989 and the presence of their counsel was shown incorrectly in the order bearing even date.

5. I have considered the arguments and perused the case record as well as the record produced by the Patwari. Column No.5 of the petitioners' scheme No. 309 in the register scheme shows that a large number of entries were crossed out and fresh entries substituted therein. However, columns No.9 and 10 i.e. verification by the Kanungo and approval by the Consolidation Officer are clear and unaffected. Similarly signatures of Ashfaq Hussain in English in one of the columns have been crossed but those are intact in column No.10. This tends to cast some doubt on the conduct of the Consolidation staff. Ashfaq Hussain petitioner denied his signatures in either column and produced a copy of his National Identity Card, which contained his signatures in Urdu. However, the signatures or the language thereof is not important in this case. The moot point is whether the joint khata was partitioned in accordance with the instructions on the subject, which under para.14 ( k5) of the Urdu instructions prescribed that such Khatas can be partitioned with the consent of all the shareholders subject to certain exceptions. The consent of all shareholders has not been shown to exist and no application containing their signatures or thumb impressions for partitioning the joint khata is on record and exceptions are not applicable in the case.

6. The Board of Revenue under its Letter No.149‑90/152‑CH(P)T, dated 23‑1‑1990 had since allowed partitioning of joint khatas on the request of a shareholder. However, this amendment is not retrospectively applicable and cannot be applied to the instant case at the revisional stage because of its implication on the pre‑emption litigation pending between the parties. The reasoning by the learned Additional Commissioner (Cons.) in the penultimate para of the impugned order is, I .am afraid, misconceived because the qualification of contiguity is not applicable to this case. As has been seen earlier, the mandatory instructions regarding partitioning of joint khatas have been violated and as such the impugned order cannot be sustained: Under these circumstances the revision petition succeeds; the impugned order is set aside and the order of the Collector (Cons.) dated 4‑7‑1989 is restored. A.A./420/R Revision, accepted.