1989 PLP 442 (CLC)

Ch. Nazir Hussain for Respondents Nos.l to

5. Ch. Subhan Khan for other Respondents. Date of hearing: 16th August, 1988. This is a revision petition filed under section 13 of the Consolidation of Holding Ordinance, 1960 against the order dated 19‑1‑1985 of the Additional Commissioner (Cons), Gujranwala whereby certain adjustments were made in the Khata of the parties.

2. I have heard the parties. Learned counsel for the petitioners has contended that Kh. No.96/25/2 (3K‑6M) was allocated to the petitioners by the Consolidation Officer on 2‑12‑1982. That order was not challenged by any right holder so it attained finality. The Collector (Cons) while re‑confirming scheme on 30‑6‑1986 also did not touch that number. But the Additional Commissioner (Cons) without any justification on a badly time‑barred appeal of respondents Nos.l to 5 took away that number and adjusted in the Khata of the said respondents. The land bearing Kh. No.169/14 (3K‑6M) which is given in lieu of it is situated at a distance of about two miles away from their plot.

3. Learned counsel for respondents 1 to 5 has stated that disputed number was previously owned by them. It was a valuable piece of land being situated on road. They were illegally and unjustly deprived of that area. The Additional Commissioner (Cons.) has committed no irregularity in restoring it to them. .4. I have considered the arguments presented before me by the parties and have examined the record. It is apparent on the face of record that disputed Khasra No. being situated outside the "Naiseen" belt did not come within the ambit of MBR's remand order dated 1‑11‑1976. Hence the Collector (Cons.) in his order dated 30‑6‑1983 did not touch this number. In fact he was not supposed to touch this number. Although the disputed Khpsra number was outside the purview of the MBR's remand order dated 19‑11‑1976 and therefore was not touched by the ADC/Collector (Cons.) and rightly so, yet to obtain this land an appeal was filed before Additional Commissioner (Cons.), and the worst part of it is that it was accepted. Since the disputed land was not covered by MBR's remand order dated 19‑11‑1976 s and also Collector's order dated 30‑6‑1983, 1 fail to understand why the appeal was firstly entertained and then decided by the learned Additional Commissioner. No right presumed or otherwise can be claimed in appeal which was not an issue before the lower Court and consequently was not adjudicated upon. The learned Additional Commissioner appears to have gone out of his way in allowing Khasra No.96/25/2 (situated outside Naiaeen) to the respondents and making other consequential changes. The learned Additional Commissioner had no jurisdiction to pass the impugned order in the circumstances of this case. The revision petition is therefore, accepted and the impugned order is set aside being of no legal effect, being avoid. A . A . /293/R Petition accepted.