2000 PLP 349 (CLC)

This is an application under section 12(2) read with section 151, C.P.C. for dismissal of judgment, dated 18‑5‑1998 passed by this Court.

2. Brief facts of this case are that respondent was a temporary lessee under five years scheme vide order, dated 6‑1‑1979 passed by the learned Collector, Colony, Bahawalpur in Chak No.24 B.C. w.e.f. Rabi 1978 in square No.63 Killas Nos. 1, 2, half, 3, 8 half, 9 to 12, 13 half, 18 half, 19 to 22 and 23 measuring 100 Kanals. The respondent filed a Writ Petition No.69 of 1998 that the land was barren comprising of heavy sand dunes, the respondent developed the land by putting hard labour incurring heavy expenses for making it cultivable and is in continuous physical possession of the land in dispute. He applied for the grant of proprietary rights for the said land but his request was turned down bye the Revenue Authorities upto the Board 'of Revenue and he also failed in Civil Court. He then applied to the Member Board of Revenue for extension of his lease. His request was accepted by the learned Member, Board of Revenue and order was issued that if the petitioner is eligible, he may be treated as lessee w.e.f. Kharif, 1981 subject to payment of market rent. The respondent applied to the District Collector for the extension of lease and deposited the lease money for regularization of his lease period but he was straight away ordered to be rejected by the learned District Collector. He filed Writ Petition No.69 of 1998 which was accepted and orders, dated 27‑6‑1997 and 12‑6‑1997 were set aside being passed without lawful authority, a direction was given to the learned District Collector to restore the possession of land under allotment, dated 6‑1‑1979 to the petitioner forthwith. The learned District Collector was further directed by this Court to determine the eligibility of the petitioner strictly in the light of letter issued by the Board of Revenue, dated 13‑2‑199.0 for extension of lease keeping in view ail the letters and instructions issued from time to time by the Board of Revenue to govern the temporary leases scheme of 3‑2‑1979. This judgment is dated 18‑5‑1998. Without further assailing this judgment before the competent forum, Muhammad Hussain and Ghulam Muhammad petitioners have moved under section 12(2) read with section 151, C.P.C. for setting aside the judgment, dated 18‑5‑1998 passed by this Court. Grounds of this application are that the respondent has concealed the facts and got the' order, dated 18‑5‑1998 with fraud and misrepresentation, therefore, judgment, dated 18‑5‑1998 is liable to be dismissed.

3. Learned counsel for the applicants argued that the petitioners are selected tenants. The respondent was allotted land in Square No.43 but later on he gave an application for allotment of alternative land which was granted to him and he vide order, dated 12‑7‑1979 allotted land in Square No.63 under five years temporary leases scheme. Being aggrieved the present petitioners filed an appeal in the Court of learned Additional Commissioner, which was accepted on 15‑9‑1979 and the allotment, dated 12‑7‑1979 was cancelled. Respondent filed a revision in the Board of Revenue which was dismissed on 16‑12‑1979. The respondent again filed an application for proprietary rights which was dismissed and his remedy upto the High Court remained frustrated. He approached the Member, Board of Revenue and got an order, dated 13‑2‑1990 and this order is bogus as the Board of Revenue has no authority to allot the property on market rate.

4. Contention of learned counsel for the petitioners is that the respondent has concealed all these facts from this Court. He is no more allottee of the disputed lot. He was never given possession under section 10(2) of the Colonization of Government Lands Act, 1912, and therefore, the land was not transferred to him according to the provision of Colonization of Government Land Act, 1912. He is not a landless tenant. 5. 1 have heard both the parties and carefully perused the narration of facts in the application given under section 12(2), C.P.C. The respondent present in Court states that he is unable to engage a counsel as he has no sufficient means to do so. He is directed by this Court to argue his case himself. He submits that he has‑been declared a landless tenant and was allotted this land and has been in cultivating possession of property in dispute. He was never ousted. He was given possession by the Collector in view of order, dated 6‑1‑1979 and he has not concealed any facts from this Court.

6. The representatives of respondents Nos.3 and 4 with record and respondent No.7 present in person. I have carefully perused the Revenue Record produced by them. They have produced Rappat Roznamcha Waqiati No.449, dated 9‑7‑1987 where the register Khasra Girdawari for the years, 1952 to 1956 and 1964 to 1968. 1981 to Rabi 1985 and register record of rights for the years, 1971‑72 and 1983‑84 was not prepared due to insufficient papers. However, he has produced record of right for the year. 1975‑76, in Square No.63 on the disputed Khasra it is written The record of rights for the year 1979‑80 in the cultivation column, Rasheed son of Fajji resident of Deh Temporary cultivation under five years scheme is recorded. In record of rig is for the year, 1983‑84 Rasheed son of Fajji is again recorded as "=‑'r~ Vn the record of right for the year. 1995‑96 in cultivation column "~V~ " is recorded. In the Khasra Girdawari from Kharif 1980, to Kharif, 1998 respondent Abdul Rasheed is shown in cultivating possession of the disputed property.

7. It seems that Abdur Rasheed respondent was in cultivating possession being a lessee remained in disputed lot even after dismissal of the order, dated 6‑1‑1979. Rappat Roznamcha Waqiati shows that register record' of rights for the years, 1965‑66, 1966‑67, 1968‑69 and 1975‑76 were not prepared by Patwari due to insufficient papers. No proceedings were conducted against these Patwaris who are now dead. The respondent has produce some papers which show that he was showing to Revenue Authorities that he was a landless tenant. In Notification, dated 20‑4‑1983, the respondent is shown to be in possession of disputed lot, from Rabi 1980 upto this time.

8. Therefore, I am not convinced by the contention of learned counsel for the petitioners, that respondent was never put to possession under the order, dated 1‑6‑1979. This physical possession of the lot in dispute is recorded in the Jamabandi, 1975‑

76. The second contention of learned counsel for the petitioners that he has concealed that his allotment was cancelled. In order, dated 18‑5‑1998 passed by this Court, it is recorded that respondent had failed upto the Board of Revenue and Civil Court.

9. In fact the Revenue Authorities had realized that respondent was never ousted from the lot although he remained unsuccessful before all the forum. Since he was in continuous possession of the disputed property and he could apply for extension of his lease. Board of Revenue passed a speaking order in this behalf. The learned Member, Board of Revenue vide Letter No.637/90/690‑CLI, Government of the Punjab, Colony Department, Lahore, dated 13‑2‑1990, gave direction to the District Collector that the petitioner (Sufi Rashid) who is otherwise not entitled for proprietary rights, is found eligible he may be treated as lessee w.e.f. Kharif, 1989 subject to payment of market rent, part dues may be received from him on the basis of original lease rent till duration of lease from Kharif, 1979 to,Rabi, 1984 thereafter prevalent rent from Kharif 1984 to Rabi 1989. The respondents' eligibility is yet to be determined by the learned District Collector under Notification, dated 3‑9‑1979 and 20‑4‑1983 issued by the Board of Revenue. Even from the perusal of complete record I have seen that the petitioner who has filed the present application under section 12(2), C.P.C. figures nowhere in Revenue Record. He is only challenging allotment orders passed in favour of the respondent.

10. Moreover, the order passed by the learned Member, Board of Revenue is not challenged anywhere, therefore, it has achieved finality. The Revenue Authorities have to keep in mind Rappat Roznamcha Waqiati No.449, dated 9‑7‑1987 where certain record of right was not prepared by the Patwads and no proceedings were conducted against those Patwaris. No misrepresentation, collusion or fraud has been shown in the application given under section 12(2), C.P.C. This application suffers from lack of cause of action. The petitioners have 'not shown their locus standi for the said application. The District Collector has to follow the instructions given by the A Member, Board of Revenue in his speaking order. This order passed by the Board of Revenue has attained finality as it is not challenged before any superior forum and the District Collector has to strictly adhere to the instructions given in the aforesaid order.

11. Therefore, finding no cause of action and substance available under section 12(2), C.P.C., the present application is rejected under Order VII, Rule 11, C.P.C. No order as to costs. H.B.T./M‑1295/L Application rejected.