2008 PLP 940 (CLC)

INAM-UL-HAQ (MEMBER JUIDICAL-VII).

This is a revision petition against the order of Executive District Officer (Revenue) Mandi Bahauddin dated 14-11-2006 through which he has dismissed the revision, petition of the petitioner due to non-prosecution and also against his order dated 23-11-2006 on the application of restoration of the said revision petition which was turned down.

2. Brief facts of the case are that on the application of Muhammad Aslam, respondent demarcation of Khasra No.3124 measuring 4 Kanals, 16 Marlas of Mauza Chailianwala was carried out on 29-4-2006. Applicant/respondent was present during proceedings whereas the opponent group i.e. present petitioner was not present there. Demarcation was carried out by Muhammad Anar Khan, Kanoongo Halqa who narrates in his report that Khasra No.3124 measuring 4 Kanals, 16 Marlas owned by Muhammad Aslam respondent was demarcated. He also reported that as per record the said Khasra was in possession of the petitioner and Allah Dad and both of them had been cultivating it since long. He further reported that the petitioner Akhtar Mahmood was not willing to vacate his possession.

3. An appeal was filed by the petitioner before Deputy District Officer (Revenue), Mandi Bahauddin against this demarcation. Parallal to that respondent also moved an application to Deputy District Officer (Revenue), Mandi Bahauddin for issuance of warrant to get possession of the said Khasra from the petitioner. Deputy District Officer (Revenue), Mandi Bahauddin disposed off both the cases through this order, dated 22-8-2006 by accepting the appeal filed by the petitioner and set aside the demarcation proceeding on the ground that Girdawar was not empowered to make demarcation proceedings and also directed the respondent Muhammad Aslam to move afresh for the demarcation process. 3-A. Muhammad Aslam, respondent filed fresh application for demarcation on 26-8-2006 and the demarcation was carried out by Revenue Officer on 28-9-2006. This new demarcation was again carried out in the absence of present petitioner who was in possession of said Khasra. In his report Revenue Officer has declared that on the western side of said Khasra there is an encroachment of 3 Karams but he has not mentioned who was in possession of Khasra No.3124 and who was occupying this 3 Karams land which he reported to be encroached upon. Again Akhtar Mahmood petitioner filed an appeal against this new demarcation dated 28-9-2006 anti Muhammad Aslam respondent made an application to District Officer (Revenue) Mandi Bahauddin for issuance of warrant to get possession of his land. Both these cases were filed on 3-10-2006 and were fixed for 10-10-2006. On 10-10-2006 petitioner Akhtar Mahmood was not present and in his absence Deputy District Officer (Revenue), Mandi Bahauddin dismissed his appeal and ordered to issue warrant for transferring possession of 9 Marlas land of Khasra No.3124 from Akhtar Mahmood to respondent Muhammad Aslam on the basis of demarcation, dated 28-9-2006. The petitioner filed a revision petition in the Court of Executive District Officer (Revenue), Mandi Bahauddin on 18-10-2006 against the order of Deputy District Officer (Revenue), Mandi Bahauddin dated 10-10-2006. This revision petition was dismissed by Executive District Officer (Revenue), Mandi Bahauddin on 14-11-2006 due to non-prosecution. Application of the petitioner dated 22-11-2006 for restoration of his revision petition, dismissed due to non-prosecution, was also rejected by Executive District Officer (Revenue), Mandi Bahauddin on 23-11-2006. Meanwhile possession of disputed 'land was transferred to respondent from the petitioner by Revenue Authorities on 12-10-2006.

4. Counsel of both the parties have been heard. Plea of the petitioner is that he was in possession of Khasra No.3124 since long and his possession was legal. Respondent's claim is that possession of the petitioner was illegal and was rightly ejected by the Revenue Authorities after demarcation.

5. Revenue record has been perused. Record of rights of 1940-41 shows that Khasra No.3124 measuring 4 Kanals, 16 Marlas was owned by Muhammad Aslam son of Noor Dad (respondent) and was in possession of Qadar Dad son of Khuda Dad (predecessor-in-interest of the petitioner Akhtar Mahmood). Qadar Dad occupied it as "non-hereditary" tenant. Although the word "tenant" has not been written but in the column "hereditary or non-hereditary" terms are used for tenant only. In record of rights of 1964-65 this tenancy was transferred to sons of Qadar Dad named as Allah Dad and Khuda Dad with equal shares. Position becomes crystal clear in record of rights of 1972-73 where ownership of this Khasra is recorded as of Muhammad Azam son of Noor Dad i.e. brother of Muhammad Aslam (respondent) and possession of Allah Dad and Khuda Dad as tenants at will and in equal shares. The fact is again repeated so in record of rights of 1976-77 where Allah Dad and Khuda Dad are recorded as tenants at will with equal shares. In the latest record of rights i.e. 2004-05 Allah Dad son of Qadar Dad and Akhtar Mahmood son of Khuda Dad both successors-in-interest are recorded as in possession of this Khasra.

6. Now it is very clear that since 1940-41 present petitioner or his predecessor has been continuously in possession of this disputed Khasra number. Uptill 1988-89 it is recorded that petitioner was enjoying the possession as tenant at will. Thereafter, the capacity in which the petitioner possessed this land is not recorded but from the mode of payment of land revenue which reads as it is clear that petitioner is in possession of the disputed land with the consent of the respondent owner and is paying land revenue at the same rate at which it is to be paid by the owners. It may be mentioned that it is the duty of owner to pay the land revenue but here the occupant is doing so, at the same rate due, to his relationship with the owner.

7. Therefore, it becomes clear that possession of petitioner on this disputed land is legal. Hence ejectment of the petitioner by the lower Court after declaring him illegal occupant is absolutely wrong. The revision petition is accepted with costs and orders of Deputy District Officer (Revenue), Mandi Bahauddin, dated 10-10-2006 and Executive District Officer (Revenue), Mandi Bahauddin, dated 14-11-2006 and 23-11-2006 are set aside. Demarcation report dated 28-9-2006 is incomplete as it does not show who is occupying the disputed land and in what capacity. It is also contrary to facts recorded in record of rights. Hence that too is set aside. Possession delivered to the respondent is also illegal, which be restored. H.B.T.18/Rev. Petition accepted.