2000 PLP 2033 (CLC)

and setting aside the judgment and decree of the trial Court decreed the suit of the plaintiff, respondent with costs throughout. Aggrieved by the said judgment and decree Saadullah Khan, defendant No.5 has filed in this Court Revision Petition under section 115, C.P.C.

2. According to the plaintiff, in lieu of his claim, the Garden Committee, 1Q.‑W.F.P. through RL‑11 Serial No.83; dated 29‑6‑1960, permanently' allotted land measuring 54 Kinals; 19 Manias, comprising new Khasra No.700 situated in village Ratta Kulachi, besides a garden known as Bagai Wala'. Suba, one of the Dakhal Kar' tenant, filed appeal against the said allotment in the Court of the Deputy Commissioner, Rehabilitation/Collector, D.I. Khan which was; however;, dismissed by order, dated 20‑6‑1961 (certified copy Exh.P.W.7/2). The land in dispute prior to allotment to the plaintiff remained in possession of different lessees, while the defendants were recorded as Dakhilkar without possession. The Revenue Record is clear to indicate that non‑Muslims evacuees (the original owners), thereafter the lessees and after allotment to the plaintiff, the plaintiff is in possession of the area in question and the non‑occupant Dakhilkaran had no concern whatsoever with the possession of the land, who tried to get the Revenue Record altered to that extent through Mutation No. 1404 for transfer of ownership on the basis of tenancy rights, Since they were not fulfilling the requirements of section 4‑A of the N.‑W.F.P. Tenancy Act, 1950 the said mutation was rejected by the order of the Revenue Officer, dated 18‑12‑1962. Suba etc. filed appeal in the Court of the Collector against rejection of the mutation which, too, was dismissed with ‑the observations that owners were in continuous possession since 1925‑26 and that Suba etc. had ceased their rights of ' Dakhilkari' since long.

3. Haji Rehmatullah Khan (P.W.7), while appearing as a witness for the plaintiff stated in Court that the area in suit had been allotted to the plaintiff‑respondent in the year 1960‑

61. Suba etc., defendants challenged the said order of allotment in 'the Court of Deputy Rehabilitation Commissioner/Collector, D.I. Khan, who vide order, dated 20‑6‑1961 (Exh.P.W.7/2) rejected the petition. Suba etc. did not challenge the said order of the D.R.C. On the other hand Suba etc. managed to get entered. Mutation No.1404 in order to get proprietary rights on the basis of tenancy under the N.‑W.F.P. Tenancy Act, 1950 but the Assistant Consolidation Officer (Revenue Officer Circle) by his order, dated 18‑12‑1962 rejected the said mutation. The order of the said Revenue Officer reads:‑‑ This order of Revenue Officer was challenged by Suba, defendant in the Court of Additional Deputy Commissioner (Consolidation/Collector), D.I. Khan who dismissed the petition by his order, dated 3‑5‑1963. The relevant part of the order is reproduced thus:‑‑ "The Revenue Record shows that the original owners (non‑Muslims evacuees) are shown in possession of the land in dispute since 1925 26 and that an orchard exists on the land in question which was planted by the original owners. Obviously, the occupancy tenants are not in possession of the land in question since 1925‑26 and have, therefore, abandoned the occupancy rights in the above said land for the last 16/17 years. In view of the above, I am of the view that the learned Revenue Officer was quite justified in rejecting this mutation because it was not legal forum to decide the factum of possession of the land in question after a period of 37 years. In view of the above reasons I am of the view that there is not force in the appeal which is hereby rejected. The appellant should seek his remedy in a proper Civil Court." Muhammad Sultan, Special Attorney of Saadullah Khan, defendant petitioner while appearing as D. W'.1 did not controvert these happenings but in cross‑examination only expressed his ignorance about any litigation inter se, the plaintiff and Suba. The broad fact remains, that attempt of Suba etc. to acquire proprietary rights on the basis of tenancy and their attempt to question the allotment of the land in suit to the plaintiff had failed in the competent forums and as a last resort they had been advised to seek ‑their remedy in the Civil Court pertaining to their rights of ownership on the basis of occupancy tenancy. Since Suba etc. failed to get their grievances redressed in the competent Civil Court, the chapter was closed for all intents and purposes and the entries in the Revenue Record thereby attained finality. Strangely, Suba etc. through Mutation No. 161 transferred their occupancy rights in favour of Allah Bakhsh this mutation was attested on 8‑8‑1969. Allah Bakhsh, the purchaser of the occupancy rights then managed to get entered Mutation No.266 for transfer of ownership which was attested on 21‑9‑1978. Perusal of the entries in the said mutation (Exh.P.W.l/3) would reveal that the said mutation was entered under some purported instructions of the Board of Revenue and in pursuance of a Letter No‑603/SK, dated 19‑4‑1952 regarding transfer of rights owing to occupancy tenancy. From the report of the Circle Girdawar on the said mutation it is clear that there were no entries regarding division of shares inter se, the owners and the occupancy tenants. The said note of the Circle Girdawar reads:‑‑ However, the Revenue Officer Circle (A.C.O.) under the purported instructions of the Board of Revenue attested the mutation on 21‑9‑1970 with regard to transfer of ownership whereby Abdur Razaq Khan, plaintiff respondent was shown as owner of 13 shares and Allah Bakhsh as owner of 23 shares. As pointed out earlier, the said instructions of the Board of Revenue were allegedly endorsed to the Revenue Officer Circle through Letter No.603/SK, dated 19‑4‑1952 but while attesting Mutation No.266, above‑referred, the Revenue Officer flagrantly failed to take into consideration the various litigations that had occurred with regard to the allotment and the refusal of the competent forums regarding conferment of proprietary rights owing to occupancy tenancy in favour of the original occupancy tenants. This Act on the part of the revenue staff lends support to the contention of the plaintiff that the said mutation was attested in collusion of the concerned revenue staff.

4. As pointed out earlier, the order regarding rejection of the mutation by the Revenue Officer concerning proprietary rights on the basis of occupancy tenancy was challenged before the Additional Deputy Commissioner (Collector) D.I. Khan, who, however, dismissed the petition by order, dated 3‑5‑1963 holding that non‑Muslims evacuees were shown in possession of the land since 1925‑26 and that occupancy tenants were not in possession of the land in question since 1925‑26 which had been abandoned about 16/17 years back. In the said order the Collector, D.J. Khan had advised Suba etc. to seek the remedy in the proper Civil Court. In Abdul Hamid‑petitioner v. Aziz Bakhsh‑respondent (1973 SCMR 510) their Lordships of the Supreme Court had held that under the Displaced Persons (Land Settlement) Act, order passed by the Additional Deputy Commissioner appointed as Deputy Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner under section 11 having not been challenged before any higher Settlement Authority and allowed to become final, such order could not be challenged by other independent proceedings. In this case, too, the order of the Additional Deputy Commissioner, dated 3‑5‑1963 having not been annulled by any superior form has assumed finality and it is thus not open in any independent proceedings i:e. by way of a civil suit. It appears that finding no legal remedy available Suba etc. managed to collide with the revenue staff and got Mutation No. 161 regarding transfer of their occupancy rights attested in favour of Allah Bakhsh on 8‑8‑1969 followed by another Mutation No.266 for the transfer of ownership rights which was .attested on 21‑9‑1978. Both these mutations ran contrary to the order of the Additional Deputy Commissioner, which as observed above, has attained. finality wherein Suba etc. were declared not to occupy the status of occupancy tenants having ceased such rights since 16/17 years before.

5. During the pendency of the instant suit Suba defendant placed on file an affidavit on 2‑4‑1987 wherein he stated that he was tenant of about 70 Kanals of land in Khasras Nos.700, 701 and 707 since 5/6 years before. Nowhere‑he has alleged that he was the occupancy tenant of the land since 1925‑

26. On the other hand one Ghulam Haider filed an affidavit in the trial Court claiming to be the occupancy tenant since last 25 years under Professor Abdur Razzaq. The admission on the part of Suba further disentitles him of occupancy rights and in such a situation sale of occupancy rights in favour of Allah Bakhsh by Suba through Mutation No.161 attested on 8‑8‑1969 appears to be a ministerial tactics. When Suba through a sworn affidavit himself claims to have become the tenant of a portion of land under Professor Abdur Razzaq 5/6 years before' filing of the affidavit transferring of occupancy rights in favour of Allah Bakhsh on 8‑8‑1969 is an obvious fraudulent attempt to deprive the plaintiff of his legal rights. Once transfer of occupancy rights in favour of Allah Bakhsh by Suba defendant are held to be the result of a fraud played in collusion. with the revenue staff, all the subsequent transfers are void and as such ineffective on the rights of the A plaintiff.

6. Resultantly while agreeing with the findings of the learned Additional District Judge I hold that the suit of the plaintiff had rightly been decreed. Consequently I find no substance in this civil revision petition, which is hereby dismissed Q.M.H./M.A.K./114/P Revision dismissed