1984 PLP 1625 (CLC)

‑‑ S. 16‑Provisional Constitution Order (1 of. 1981), Art. 9 Consolidation proceedings‑Dispute in respect of tenancy of land- Record produced by Patwari showing finding of Member, Board of Revenue that respondent was in cultivating possession of and as tenant under other allottee at time of sanction of scheme by consolidation authorities and as such entitled to continue in same character suffering from misreading of evidence‑‑Finding set aside. [Evidence]. --‑‑Art. 9‑West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S. 16 ‑ Constitutional relief‑Petitioner successfully establishing that impugned order rested on premises wholly misconceived and contrary to record‑Petitioner held, cannot be denied relief on plea that his role has not been above board which is a rule of equity and Court not bound to refuse relief in every case‑Refusal of relief resulting in prepetuating illegal order, Court, held further, may exercise its jurisdiction without going into petitioner's conduct. The land in dispute bearing Khasras Nos. 12/2, 19/1, 19/2, 20/1 and 20/2 measuring 19 Kanals together with some other land was in the joint Khata of three persons, namely, Karim Bakhsh, Muhammad Hussain and Allah Ditta. As a result of consolidation proceedings, Khasra number aforesaid fell in the Khata of Karim Baksh who by means of a sale‑deed, dated 30‑8‑1977 sold away the same to the petitioner. A dispute arose between the petitioner and Lal Din respondent, in respect of tenancy of the land. The latter claimed that as he was in cultivating possession of the land as a tenant, under the vendor, at the time of the sanction of the Scheme by the Consolidation authorities, he was entitled to be inducted therein and have his name recorded in the revenue‑record, as a tenant under the petitioner. The various orders passed by the Consoli dation authorities, in this behalf need not be referred to here and it would suffice to observe that on a revision filed by the petitioner, the matter was lifted before the learned Member, Consolidation) Board of Revenue who by his order, dated 28‑4‑1982, impugned through this writ petition, rejected the same. In disposing of the petitioner's revision, the learned Member maintained; " The entries in the record of rights as existed in the year 1972, would allow that at the time of confirmation of the scheme on 10‑3‑1972 the land in dispute was possessed by Lal Din, respon dent as tenant of Karim Bakhsh allottee and as such he was entitled to continue in possession in the same character in view of section 16 of the Ordinance and any subsequent change in the ownership of the land was in no way to detract from his character as a tenant or affect the incidence of tenure as previously existed."

2. The learned counsel for the petitioner, has invited my attention to the record produced by the Halqa Patwari, to contend that the aforesaid observations of the learned Member Board of Revenue suffers from misreading of the record inasmuch as at the relevant time, the land was never in possession of the respondent as tenant of Karim Bakhsh. There is some merit in this submission. As stated above, the Scheme was sanctioned on 10‑3‑1972 and for determination of the con troversy as to who was in, cultivating possession of the land, the entries in the crop‑register, relating to Rabi, 1972, would be relevant. It is discernible from the khasra‑girdawari that in Rabi, 1972, Lal Din respondent was in the cultivating possession of Khasra No. 19/2 only, which measures 3 Kanals 2 Marlas and that too under Allah Ditta Hissadar. Out of the remaining land Khasras No. 12/2, 19/1, and 20/1 were in possession of Muhammad Hussain, 'Hissadar' and whereas Khasra No. 20/2 was under the cultivating possession of Allah Ditta through Sharif, Imam‑Masjid. The consolidation‑operation reportedly were carried on the basis of Register‑ Haqdaran for the year 1967‑

68. The position obtaining in this record so far as Lal Din's cultivating possession is concerned, is not different than the one depicted by khasra girdawri.

3. Being faced with this record, the learned counsel for the respon dent did not have much in controverting the stand taken by the peti tioner. He, however came forth with the submission that in the year 1979 the petitioner filed a suit against the respondent for his ejectment from the land in dispute and before the Collector pleaded that during Rabi, 78 and Kharif, 78, the respondent occupied the land as a tenant under him. He thus submitted that the petitioner by his own conduct was precluded from denying the respondent's status and was not entitled to the discretionary relief under the writ jurisdiction of the Court.

4. It is to be seen that the respondent .has not filed any written statement and the plea as to the petitioner's admission before the revenue‑authorities, was raised during arguments. The reply given by the petitioner's learned counsel, however, was that though in the year 1978 the respondent occupied the land as a tenant yet subsequently he abandoned the same. The respondent's objection and the peti tioner's reply thereto need not be evaluated. The rule that a petitioner whose role is not above board may not be granted relief under the dis cretionary jurisdiction is a rule of equity and the Court is not bound to refuse relief in every case, on account of conduct of the petitioner. If the refusal of the relief results in perpetuating an illegal order, the Court may exercise its jurisdiction without going into the petitioner's conduct. The petitioner has challenged the impugned order on the ground that it is rested on the premises which are wholly misconceived and contrary to the record. This contention he has successfully established. I am, therefore, not inclined to deny relief to the petitioner on the plea urged by the respondent's learned counsel.

5. For the foregoing reasons this writ petition is accepted, the impugned order set aside and the case remanded to the learned Member, Board of Revenue to decide the petitioner's revision petition afresh in accordance with law. It would be open to the parties to have the relevant record summoned before him and raise any contention against one another in accordance with law. The parties are left to bear their own costs. M. Y. H. Petition accepted.