2006 PLP 1742 (CLC)

JAWWAD S. KHAWAJA, J.

Muhatnmad Azam (respondent No.3) has appeared in person. Walayat Khan (respondent No.2) is not present although he has been served. He is, therefore, proceeded against ex parte. Cost, ordered on the previous date, has been paid.

2. Ghulam Rabbani petitioner/defendant impugns the appellate decree, dated 20-6-2001, whereby the decree of the learned trial Court, dated 28-10-2000 was set aside and a suit for possession filed by Haji Rahmat Khan (respondent No.1) was decreed.

3. The facts of this case are simple. The dispute between the parties relates to land comprised in Khasra No.19/4. The petitioner claims that in consolidation proceedings undertaken in 1976 and even prior thereto he was the owner in occupation of the suit-land. The claim of Haji Rahmat Khan respondent/plaintiff was that the disputed Khasra had fallen in his share as a result of the consolidation.

4. The order passed by the Consolidation Officer supports the plea advanced by the petitioner. It is the order of the Consolidation Officer, which will determine the entitlement of the parties. The name of respondent/plaintiff does not find mention in respect of Khasra No.19/4 in the order of the Consolidation Officer. On the other hand, the scheme, approved in favour of the petitioner, shows the disputed Khasra in his name.

5. Learned counsel for the respondent/plaintiff referred to entries in the Jamabandies after consolidation and to certain entries in the consolidation proceedings to show that Khasra No.19/4 had been given to the respondent/plaintiff. The consolidation record, referred to by learned counsel for the respondent/plaintiff, cannot possibly override the order of the Consolidation Officer. As far as the subsequent Jamabandies are concerned, these also cannot be contrary to the order passed by the Consolidation Officer.

6. The respondent/plaintiff did not challenge the order of the Consolidation Officer before the revenue hierarchy, which was the forum for redressal of any grievance arising out of consolidation proceedings. Learned counsel for the respondent/plaintiff did refer to an appeal filed by one Akbar Ali (not a party in this litigation) against the petitioner Ghulam Rabbani before the Additional Deputy Commissioner (Consolidation). This appeal was dismissed on 5-6-1982. 7 .Learned counsel for the respondent/plaintiff contended that Khasra No.19 had been referred to in the judgment of the A.D.C.(C) wherein Scheme No.2 favouring the respondent/plaintiff had been mentioned as covering 6 Marlas out of Khasra No.19. This alone, for a number of reasons, cannot be construed as evidence to prove that the respondent/plaintiff was given land out of Khasra No.19 during the consolidation proceedings. Firstly it is to be noted the aforesaid appeal was not between the parties to this litigation. Secondly, the appeal of Akbar Ali was dismissed by the Additional Deputy Commissioner (Consolidation). Most importantly, however, the contention, which is subject-matter of the present proceedings, was not before the Additional Deputy Commissioner (Consolidation) and nor was any adjudication made with the object of scrutinizing and/or modifying the order of the Consolidation Officer.

8. Learned counsel for the respondent/plaintiff next referred to the report of a Local Commission dated 23-12-1979 wherein it had been noted that the petitioner and others were engaged in construction activity on the suit property. This fact has no relevance for proving the title of the respondent/plaintiff in Khasra No.19/4. Title therein as noted above, was determined by the order of the Consolidation Officer, which has attained finality because it has never been challenged before the Revenue Forums.

9. The learned Appellate Court unfortunately has not taken note of the above circumstances. It has held that Khasra No.19/4 measuring 6 Marlas was allotted to Haji Rahmat Khan respondent/plaintiff in Scheme No.2 and not to the present petitioner in Scheme No.65. Bearing in mind the order of the Consolidation Officer, appearing as D.W.2/1, in respect of the petitioner Ghulam Rabbani, there can be no doubt that Khasra No.19/4 was given to the petitioner and not to the respondent/plaintiff.

10. Considering the above evidence, I am not left in any doubt that the appellate decree is based on a misreading of evidence. The same is, therefore, set aside. As a result, the decree of the learned trial Court dated 28-10-2000 stands restored. H.B.T./G-36/L Revision allowed.