1991 PLP 865 (CLC)

Tassadiq Hussain Jilani for Respondents Nos.1 and

2. Athar Rahman Khan for Respondents Nos.3 to

14. Date of hearing: 27th January, 1991. This revision petition arises out of a suit for declaration filed by the petitioner on 19‑4‑1909 in the Court of Senior Civil Judge, Sahiwal which was decreed in his favour on 26‑2‑1981. Two separate appeals, one riled by the Province of Punjab and the other by Muhammad Mushtaq etc, (legal representatives of Faqir Muhammad decreased) were allowed by the learned Additional District Judge, Vehari vide his judgment and decree dated 17‑2‑1982, whereby the decree of the trial Court was set aside.

2. Brief facts of the case are that land measuring 12/1‑2 acres bearing Killas Nos.1 to 12, 13/1, Square No.13 situated in Chak No.359/E.B., Tehsil Pakpattan (now District Pakpattan) was allowed to the petitioner on 14‑12‑1956 under Grow Food Scheme and physical possession delivered to him on 8‑4‑1957. A part of the land was barren and the petitioner made it arable with huge expenditure and great labour. The initial period of lease was three years but subsequently extended to five years vide letter dated 13‑9‑1958 issued by the Board of Revenue. However, on 20‑1‑1962 Killas Nos.1 to 5 and 6/1 out of the land comprised in the petitioner's tenancy alongwith some other land was allotted td Faqir Muhammad, the, predecessor‑in‑interest of respondents Nos.2 to 14 under the Islamabad Oustees Scheme. On the spot possession of the land remained with the petitioner. When officials from the office of the Collector tried to dispossess the petitioner, then he instituted the declaratory suit. Originally, the suit was filed against the Province of the Punjab through Collector, Sahiwal. Later, Faqir Muhammad, predecessor‑in‑interest of respondents No. 2 to 14 was impleaded under order of the Court dated 16‑12‑1970.

3. The petitioner's learned counsel contended that the petitioner's lease was not cancelled by the Collector and during its subsistence, the land was illegally allotted to Faqir Muhammad on 20‑1‑1962. It amounted to refusal to grant proprietary rights to the petitioner. It is further submitted that no notice was issued to the petitioner before allotting the disputed land to Faqir Muhammad. He urged that the statement of Patwari Halqa D.W.4 clearly showed that he had not delivered possession of the disputed land to Faqir Muhammad and that the petitioner was in possession of the same. It is submitted that the petitioner fulfilled all the conditions of the allotment and was entitled to conferment of proprietary rights or to purchase the land through private treaty. In this connection he placed reliance on the case of Kaloo v. Province of Punjab (R.S.A. No. 240 of 1980) decided by this Court on 27‑5‑1989. Lastly he urged that the appellate Court wrongly held the suit to be barred by time. On the other hand ‑the. learned counsel for the respondents No.2 to 14 contended that the allotment made on 14‑12‑1956 to the petitioner had already expired when it was allotted to Faqir Muhammad, deceased, predecessor‑in‑interest of respondents 2 to

14. He further submitted that the petitioner had never challenged the order of cancellation of his allotment by way of an appeal or revision. He added that the petitioner should have first availed of all the remedies under the Colonization of Govt. Lands Act before filing the civil suit. In this connection, he placed reliance on the case of Muhammad Aslam v. Muhammad Ali (1980 C L C 155). He also submitted that the petitioner being a temporary allottee was not entitled to any notice before cancellation of his allotment, as held in the case of Pahora v. Member Board of Revenue (Colonies) and others (1984 C L C 2230). Lastly he submitted that the suit riled by the petitioner was barred by time and that the contrary findings of the trial Court were illegal.

4. I have considered the arguments raised by the learned counsel for the parties and perused the relevant record. Admittedly no order was passed by the Collector cancelling the petitioner's allotment or resuming the land so as to require him to exhaust the remedies before the relevant authorities under the Act. For the same reason provisions of Article 14 of the Limitation Act are not applicable in this case. The petitioner had filed the suit when officials from the office of the Collector tried to dispossess him after allotment of a part of the disputed land to Faqir Muhanimad deceased. The allotment to Faqir Muhammad deceased was made without issuance of any notice to the petitioner. Hence, he was not even aware of the person in whose favour the allotment was made and for whose benefit he was sought to be evicted. During the pendency of the suit the petitioner learnt that a part of land comprised in his tenancy was allotted to Faqir Muhammad under the Islamabad Oustees Scheme, then he impleaded him as defendant No.2 in pursuance of the order of the Civil Court dated 16‑12‑1970. It appears that after allotment of the land to Faqir Muhammad on 20‑1‑1962 Report No.122 dated 22‑1‑1962 was made in the Daily Diary regarding delivery of possession to the allottee. However, the so‑called delivery of possession was a mere paper entry. Abdul Rashid Revenue Patwari DW4 admitted that there was no order for eviction of Barkat Ali~ petitioner. Similarly the daily diary did not contain either the proceedings for his eviction or any report in that behalf. Hence, no reliance could be placed on a mere entry that possession was delivered to Faqir Muhammad allottee. The appellate Court appears to have fallen in error in relying on the said entry and holding the suit to be barred by time. The petitioner remained in possession of the land in his own right and was never dispossessed on 22‑1‑1962 so as to make the said date the starting point of limitation. Hence, I reverse the findings of the appellate Court on issue No.2 and restore those of the trial Court.

5. The petitioner, throughout, remained in possession of the disputed land as admitted by Muhammad Rafiq DW.1 He stated‑-- This admission is sufficient to discard the Khasra Girdawaris which at one stage, showed Maqbool and Muhammad Ali as tenants under Faqir Muhammad. The other Khasra Girdawaris which purport to show the petitioner as tenant under Faqir Muhammad are equally unreliable. The petitioner was allottee of the land comprising Villa Nos. I to 12 and 13/1 in whereas Faqir Muhammad deceased was shown to be allottee of the land bearing Villa Nos.1 to 5, 6/1, 15/2, 16/2, 17/2, 18/2,19/2,20/2 and 21 to 26 (according to the permit of allotment Ex. D 12 and Khasra Girdawari Ex. 133). The legal representatives of Faqir Muhammad deceased are shown in the Khasra Girdawari D4 to be in cultivating possession, through Barkat Ali, petitioner, of the land bearing Villa Nos.1 to 6, 15, 16/2, 17 to

26. Thus it is evident that out of the land comprised in the petitioner's tenancy Villa Nos.7 to 12 and 13/1 were never allotted to Faqir Muhammad deceased. There was nothing to show that on the spot any demarcation was carried out to separate the land allotted to Faqir Muhammad deceased and rest of the land i.e. Villa Nos.7 to 12 and 13/1 which remained with the petitioner. Moreover, it is strange that Faqir Muhammad, according to the permit of allotment was allotted land bearing Villa Nos.1 to 5, 6/1, 15/2, 16/2, 17/2, 18/2, 19/2, 20/2 and 21 to 26 but in the Khasra Girdawaris, his possession was shown over khasra Nos. I to 6, 15, 16/2 and 17 to

26. No effort was made by respondents Nos.2 to 14 to explain this apparent contradiction in the entries of the permit on allotment and the Khasra Girdawaris. Hence I am not prepared to place reliance on Khasra Girdawaris Exs. D3 to D9 and D.11.

6. The land was allotted to the petitioner on 14‑12‑1956, but actual physical possession delivered to him on 8‑4‑1957. Thus by virtue of the provisions of Section 10(4) of the Colonization of Government Lands Act, the tenancy was created w.e.f. 8‑4‑1957 and three years' period had commenced from the said date. It was extended from 3 to 5 years through Memo Nos.5449/58/6399‑C(G) issued by the Board of Revenue, West Pakistan on 13‑9‑1958. Thus the petitioner was entitled to cultivate the land till 'Rabi' 1962. On 22‑10‑1962 the Board of Revenue issued another memo. bearing No.4826‑62/4419‑S(G) III allowing sale of land through private treaty to lessees of the State land under Grow More Food Scheme whose term had expired in Rabi 1962. Subsequently the Government policy underwent a change and it was decided to grant proprietary rights to the allottees under the Grow More Food Scheme. Even leases cancelled by the Collector on the ground of growing fodder crops by the lessees or their failure to bring 30% of the land under cultivation were ordered to be restored and proprietary right' conferred on the lessees who were 'still in possession and had brought more than 50% area under cultivation). In this connection, the Board of Revenue issued Memo. Nos.2262‑70/777‑CL‑111 dated 31‑3‑1971. Thereafter, another Memo No.1488‑71/1217‑CL‑111, dated 26‑4‑1971 was issued. It was ordered that without any reference to the date of allotment and the period of termination of the lease, allees under the Grow More Food Scheme shall be granted proprietary rights provided. that they fulfilled the terms and conditions on which leases were granted. Even the allottees who were ousted were ordered to be restored to the lands if in the meanwhile the land in question had not been allotted under any permanent scheme. Pahora's case relied upon by the learned counsel for respondent Nos.2 to 14 is of no help to him as it proceeds on its own distinguishable facts. In that case the allotment of State land was made for temporary cultivation which was resumed by the Collector on 5‑2‑1979. The scheme regarding conferment of proprietary rights to temporary lessees was notified on 3‑8‑1979, i.e. 6 months after resumption of the land. Therefore, it was held that no vested right of the 'appellant' was violated. In the present case the petitioner was not only entitled to claim sale of the land through private treaty on the basis of memo No.4820‑62/4419‑S(G), III dated 22‑10‑1962 but also the proprietary rights. hence his vested right could not be adversely affected without issuing a notice to him and giving him a reasonable opportunity of being heard.

7. As held above, the petitioner throughout remained in physical possession of the land, a part of which was banjar and he had brought it under cultivation with considerable expenditure and labour. There is no allegation that the petitioner had ever violated the terms of tenancy. No order for cancellation of lease or resumption of land was passed against him by the Collector. In view of the above referred memoranda issued by the Board of Revenue the petitioner is entitled to the grant of proprietary rights in respect of the land comprised in his tenancy. The appellate Court ignored material evidence and acted illegally and with material irregularity in recording findings on issues Nos.3 and .5. The said findings, are, therefore, reversed. 8. 1, therefore, allow this revision petition, set aside the judgment and decree dated 17‑2‑1982, passed by the learned Additional District Judge. Resultantly the allotment of land made in favour of Faqir Muhammad, deceased in respect of Villa Nos.1 to 6 comprised in the petitioner's tenancy, is cancelled. His legal representatives, i.e., respondents Nos.2 to 14 may be provided some alternate land in accordance with the law. The parties are le4 to bear their own costs. A.A./B‑244/L Revision accepted.