1992 PLP 504 (MLD)

Date of hearing: 5th December, 1989. This revision petition has been filed under section 13 of the Consolidation of Holdings Ordinance, 1960 against the order, dated 16‑8‑1987 of the Additional Commissioner (Cons.), Sargodha Division whereby he made the Khata of the parties joint.

2. Brief facts of the case are that the respondents filed an appeal in the Court of the Collector (Cons.) against the confirmation of consolidation scheme of the revenue estate Chak No.17 Ghagh, Tehsil Shorkot, District Jhang, dated 20‑12‑1986 which was rejected by the Collector (Cons.) vide his order, dated 13‑5‑1987. He held in his order that the wandas of the parties were made separate during the consolidation operations with the consent of the parties. The respondents preferred an appeal in the Court of the Additional Commissioner (Cons.) who vide his impugned order accepted it and made the wandas of the parties joint. He held in his order that joint Khata of the petitioners and respondents was divided on an application on which the statements of Muhammad Afzal one of the respondents and Bahadar Ali one of the petitioners were recorded. But Muhammad Afzal took special oath on the Holy Quran before the Additional Commissioner (Cons.) that he did not make a statement and he did not put his thumb mark on that statement. Hence this revision petition.

3. The learned counsel for the petitioners contended that there was no occasion before the learned Additional Commissioner (Cons.) to administer an oath on the Holy Quran during the course of proceedings and the learned Additional Commissioner (Cons.) had decided the case against the petitioners on wrong impressions. It was prayed that the revision may be accepted and the scheme, as confirmed between the parties by the Consolidation Officer, may be restored.

4. Muhammad Afzal, one of the respondents, stated before me on 12‑12‑1989 that he had not put his thumb impression on the application before the Consolidation Officer. This Muhammad Afzal is the same person who took a special oath on the Holy Quran to that effect before the Additional Commissioner (Cons.). .

5. The arguments of the learned counsel for the respondents were to the effect that the joint Khata could not be divided without the consent of all the co‑sharers and Muhammad Afzal respondent had not given any consent on behalf of other respondents who are his brothers.

6. The record of the Consolidation Officer with respect to partitioning the joint khata was summoned for arriving at the correct position. Vide an un dated application given by Bahadar son of Mahmood (petitioner) and Muhammad Afzal son of Sardar Bakhsh (respondent) the Consolidation Officer was moved for partitioning of Khata No‑68 and the Consolidation Officer recorded the statements of these two persons on 24‑11‑1986 in which partitioning of the Khata was clearly mentioned. The thumb impressions of Bahadar on both these documents are clear whereas the thumb impression of Muhammad Afzal on both the places has been superimposed by another impression blurring the original thumb impression. The thumb impression of Muhammad Afzal had earlier been taken before me on 12‑12‑1989 with the intention of referring to the Finger Prints Bureau. However, since the thumb impressions taken before the Consolidation Officer were found to‑have been mutilated, therefore, no useful, purpose would be served by referring them to the Finger Prints Expert. An important question which arises here is who would benefit from mutilating the thumb impressions: The petitioners do not get any benefit because their case rests upon the consent between the parties and by making the thumb impressions doubtful their case is weakened. On the other hand the respondents are placed in advantageous position by denying their consent and also their thumb impressions. Thus these thumb impressions have apparently been damaged by the respondents in connivance with the lower functionaries to build up their case and to that extent their oath before the Additional Commissioner (Cons.) does not seem to be inconsistent with the truth.

7. Be that as it may, from the perusal of the pre‑ and post‑consolidation sketch map prepared by the Patwari the joint Khata appears to have been partitioned correctly and in accordance with the principles of consolidation. The land adjacent and surrounding the houses of the parties has been allocated to them. There is no dispute regarding its quality and classification. Muhammad Afzal respondent maintained before me on the date of the announcement of this order that the petitioners were causing interference in the irrigation of the respondents land. If that be so then the respondents can initiate legal action against the petitioners under the law. The partitioning of joint Khata in consolidation operation was subject to the consent of all co‑sharers before January 1990. For various reasons the previous instructions have since been amended by the Board of Revenue vide Memo. No.149‑90/152‑CHIP) 1, dated 23‑1‑1990 and any co‑sharer can apply for partitioning of the joint Khata. In the circumstances surrounding the present case it appears that the petitioners and the respondents cannot live', amicably together and therefore the partitioning of the joint Khata in the fight I of subsequent development is held to be appropriate and proper. The revision petition therefore, succeeds; the impugned order is set aside and the original scheme between the parties is restored. M.BA./AA.‑450/R Revision accepted