1995 PLP 1005 (MLD)

(iii) With regard to merits, the proprietary rights to the petitioners were granted under clause (iv) of para. 13 of the notification dated 3‑9‑1979 and the status of the petitioners should have been taken as such tenants and the land should have been treated as resumed/surrendered land. The learned Additional Commissioner misconstrued the implication of the notification and he wrongly held that a sub‑tenant seeking grant of proprietary rights under clause (iv) of para. 13 of the notification should be in cultivating possession prior to Kharif 1977. Actually this condition of possession prior to Kharif 1977 is required for the persons holding lease of the land seeking purchase of the land in their possession as given in para. 3 of the notification. This condition is not prescribed for the surrendered land which is given to the persons of the categories (i), (ii), (iii) and (iv) under para.

13. A sub‑tenancy can be created before the expiry of the lease, as it happened in the case of the petitioners where the land measuring 412 Kanals and 16 Marlas was distributed by the learned Collector on 12‑11‑1969 under 10 years temporary cultivation scheme and the lease was to expire in Kharif 1979, in favour of Muhammad Bakhsh, the predecessor‑in‑interest of the petitioners. The grown up sons who were living independently with their families became sub?tenants and Muhammad Bakhsh the original allottee retained for himself about 100 Kanals of land. (iv) In a later notification issued in the year 1983, a similar para to para. 3 of notification dated 3‑9‑1979 has been added where period of cultivating possession has been prescribed prior to Kharif 1980. So, in view of this there was no such condition that a sub‑tenant should be in cultivating possession of the land. In support of his contention the counsel for the petitioners quoted judgment of the Honourable Supreme Court reported in SCMR 1990 page 182 where it has been held as under:‑‑‑ `Eligibility to the grant of proprietary rights right to apply for proprietary rights accrued to the respondents on the date when memo was issued. Although respondent was not in self cultivation for specific period yet there was no finding recorded by the Collector or Additional Commissioner to the effect that he was not in possession when resumption order was passed. Right to apply for proprietary rights was accrued to respondents on specific date, he was found to be in cultivating possession on that date. Collector was not justified to decline respondent's request on ground that he was not in self?-cultivation during a spec period, when on the date when the was passing the order respondent was in possession and was self‑cultivating ?? The petitioners' case is identical if it is considered that some specific period has been mentioned in the notification to be in self‑cultivating as the learned Additional Commissioner (Revenue) has assumed even then the petitioners were in self‑cultivating possession of the impugned land under their sub‑tenancy at the time when they made the application and also at the time when the order was passed by the learned Collector who granted proprietary rights. The petitioners were also in cultivating possession at the time when the learned Additional Commissioner passed the impugned order. Reports as well as copies of Khasra Girdawaries were submitted to establish this point."

5. In view of the above submissions the learned counsel for the petitioners pleaded that the order of the learned Additional Commissioner (Revenue) is neither warranted by facts nor by law and shay be set aside. ???

6. I have carefully considered the arguments advanced by the counsel for the petitioners and I have also gone through the Revenue Record and the various orders passed by the lower Courts mentioned above and find that the main issues that emerge are the following:‑ (i) Whether or not the petitioners and their predecessor‑in‑interest entered the disputed land authorisedly under the existing scheme in vogue? (ii) Whether the petitioners or their predecessors‑in‑interest are eligible to acquire proprietary rights under the Government notification dated 3‑9‑1979?

7. As regards issue No.(i), there is no denying the fact that Muhammad Bakhsh, predecessor‑in‑interest of the petitioners was given land measuring 412 Kanals and 16 Marlas under Temporary Cultivation Lease Scheme for 10 years from Rabi 1970 to Kharif 1979, vide Deputy Commissioner/Collector, Bahawalpur's order dated 12‑11‑1969. This is also a fact that this disputed land measuring 412 Kanals and 16 Marlas was later on allotted to the original allottee and his four sons Sultan Ahmad etc. in different lots adding up to 412 Kanals and 10 Marlas vide order of the District Collector dated 1‑2‑1979. On 16‑12‑1979 Commissioner Bahawalpur, however, cancelled the allotment made to the petitioners and only allowed Muhammad Bakhsh, predecessor‑in-interest of the petitioners 100 Kanals of land on lease for further five years i.e. upto 1984. So, it is established that both Muhammad Bakhsh and his sons were authorisedly occupying the disputed land uptill 16‑12‑1979 i.e. at the time when notification dated 3‑9‑1979 was issued. It therefore stands to reason that the petitioners were in possession of the disputed land and can come under the purview of the abovementioned notification. The Revenue Records and the Khasra Girdawaries continue to show that the disputed land is still under their cultivating possession to this present day.

8. As regards issue No.(ii) it is quite evident that the petitioners and their predecessors-in‑interest had valid allotment of the disputed land uptil 16‑12‑1979 while Notification No. 3215/71/3973‑CII was issued on 3‑9‑1979. The learned Commissioner also considered the applicability of the notification to the petitioners but allowed them only that portion of the land which was in their cultivating possession during the crucial period of Rabi 1977 to Rabi 1979. Obviously he considered the petitioners eligible under para. 3 of the notification. The contention of the counsel for the petitioners throughout has been that the petitioners' case should be considered in the light of para. 13 under priority No.(iv) which reads as follows:‑‑‑ "Fourthly" to those who have been cultivating the land as sub‑tenants under such lessees as were held ineligible to purchase proprietary rights under these conditions: Provided that no person who has occupied the land without the consent of the lessee and/or the previous permission of the competent authority as required under section 19 of the Act, or has cultivated the land illicitly, or has manipulated any wrong entry in the Revenue Record regarding his cultivation, shall be entitled to get the land under these conditions." In the Revenue Record the petitioners have been cultivating possession in the capacity of sub‑tenants under Muhammad Bakhsh from at least 1974‑

75. The petitioners' contention that they should be given proprietary rights under para. 13 of the said notification dated 3‑9‑1979 as sub‑tenants in the disputed land merits consideration and their claim for the grant of proprietary rights with respect to the disputed land appears established.

9. In the light of this, the order of the Collector dated 4‑3‑1984 granting proprietary rights to the petitioners is quite valid and is upheld. The revision petitions are accordingly accepted and the order of the Additional Commissioner (Revenue), Bahawalpur, is set aside.

10. Judgment was reserved to peruse the record and examine the documents produced by the counsel for the petitioners and may now be communicated to all concerned. AA./19???????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted.