1992 MLD 761 (PLP)

This revision petition was remanded by the Lahore High Court on 21‑3‑1989.

2. Brief facts of the case are that the Consolidation scheme of the revenue estate Bahawalgarh, Tehsil Lodhran, District Multan was confirmed under section 10(3) of the Consolidation of Holdings Ordinance, 1960, by the Assistant Consolidation Officer on 30‑6‑1965. Feeling aggrieved the petitioners filed an appeal on 9‑6‑1984 with a delay of 18 years and 11 months in the Court of the Collector (Cons.), Multan, who, vide his order, dated 29‑7‑1984, dismissed it on the score of limitation. The petitioners went up in revision petition before the Additional Commissioner (Cons.). He examined the record and found that Wahid Bakhsh son of Ahmad Bakhsh was owner of the disputed land. The disputed land was proposed to Wahid Bakhsh on 11‑2‑1965 and later on, with the consent of Wahid Bakhsh, the Assistant Consolidation Officer changed the Wanda on 23‑4‑1965. Wahid Bakhsh died in the year 1968 and the land, which was given to Wahid Bakhsh after the amendment of the proposed Wanda, was mutated in the name of Muhammad Hanif and Muhammad Sharif. Muhammad Hanif, Muhammad Sharif and Muhammad Ramzan sons of Wahid Bakhsh sold Khasra No.l8/15/7 (1K‑3M) through Mutation No. 1309 attested on 21‑5‑1975 and through Mutation No.1311 on 25‑6‑1975. He vide his order, dated 4‑12‑1985 dismissed the revision petition on merits as well as on the premise of limitation. This order was assailed in the Board of Revenue Punjab but the revision petition of the petitioners was consigned to record for non‑prosecution on 1(r‑4‑1986. An application for its .restoration too was dismissed on the ground that the petitioners failed to give any reason for absenting themselves. The petitioners filed a Writ Petition (~IN0f.,8l I of 1987) which was remanded on 21‑3‑1989 by the Lahore High Court, for deciding if afresh on merits in accordance with law after hearing the parties concerned.

3. The learned counsel for the petitioners contended that Khasras Nos.15/1/2, 15/2, 15/4/1/1 and 18/7/2 (total 3K‑6M) were owned by Wahid Bash predecessor‑in‑interest of the petitioners in urban area of Town Committee Karor Pacca but were taken up for consolidation. However, this area was left intact and adjusted in the name of Wahid Bakhsh in his scheme No.269/374. The disputed land being situated on the main metalled road from Karor Pacca to Dunyapur was very valuable. Muhammad Amin Khan, predecessor‑in‑interest of the respondents Nos.1 to 5 was a very influential person and on 23‑4‑1965 he had his scheme reviewed and the petitioners were pushed to Khasra No.15/4/3/2/1, measuring 3K‑6M, away from the road. The predecessor‑in‑interest of the petitioners was not in knowledge of this illegal and void order of the Assistant Consolidation Officer as he was not summoned. Wahid Bakhsh died somewhere in 1968 and his heirs sold the land to petitioners Nos.3 to

17. The petitioners had all along presumed that they were owners of the disputed Khasras. They came to know of this illegal order in 1984 and on 9‑6‑1984, the petitioners preferred an appeal before the Collector (Cons.) which was dismissed on 29‑7‑1984 on the point of limitation. The Collector (Cons.)'s order was assailed by the petitioners before the. Additional Commissioner (Cons.), Multan Division. Although the learned Additional Commissioner (Cons.) agreed with the averments made by the petitioner that the amendments in the schemes made by the Assistant Consolidation Officer were not correct yet he dismissed the revision petition. The learned Additional Commissioner (Cons.) failed to appreciate that no counter‑affidavit was filed by the respondents before the Collector (Cons. regarding the limitation and in any case there was no limitation in consolidation matters before the Commissioner as held in P L D 1985 SC 208 and P L D 1987 SC

16. Further that the learned Additional Commissioner (Cons.) overlooked the fact that the urban and commercial land could not be taken up in consolidation and the Consolidation Officer or the Assistant Consolidation Officer did not have any power of review under the Consolidation of Holdings Ordinance and hence could not have reviewed his order after confirmation of the scheme. It was also emphasized that Wahid Bakhsh's thumb‑impression was forged and it may be compared with his other available thumb‑impressions.

4. The learned counsel for the respondents, in rebuttal, questioned the locus standi of the petitioners and argued that the Consolidation scheme was confirmed in 1965 with the consent of Wahid Bakhsh. He was alive till 1968 and the confirmed scheme with the amendment was duly incorporated in the revenue record in 1969 before the land was inherited by petitioners Nos.1 and 2 and respondent NO.18. Petitioners Nos.3 to 17 subsequently purchased this land from the legal hers of Wahid Bakhsh as available in the revenue record in 1975 which was based on the changes taking place during consolidation operations. The vendees (present petitioners) remained silent for about 10 years and then resorted to litigation in 1984. Under the Consolidation law they could not be considered aggrieved persons because they had acquired right in the disputed land subsequent to confirmation of the scheme as held in P L D 1975 (W.P.) Revenue

24. The point of limitation was clearly applicable to the petitioners under section 11 of the Ordinance ibid which had prescribed a limitation of 60 days for appeal. Had the petitioners directly preferred a revision petition before the Additional Commissioner (Cons.) then the point of limitation would not have been applicable. The Courts below had rightly held that the appeal was time‑barred by about 19 years. The predecessors‑in interest of both the parties i.e. Wahid Bakhsh and Muhammad Amin Khan had exchanged the land before the Assistant Consolidation Officer and that exchange cannot be, questioned at this stage due to limitation. If any fraud was committed, as alleged by the petitioners, then the petitioners can take recourse to the Civil Court. During this long period of time the physical situation on the spot had substantially changed and many houses and shops had come up on the disputed land. In this regard the learned counsel referred to para 3 of the report dated 4‑11‑1987 of the Local Commission, appointed by the Lahore High Court, Multan Bench in which he `found that location and demarcation of Khasra numbers given in the writ petition were almost impossible as the entire land was converted into plots; upon some plots houses and shops were constructed, some plots had got their foundations filled and some of the plots were still lying vacant upon which no construction was raised under agreement of sale'. The learned counsel stressed that the valuable rights have accrued to the respondents and other purchasers during the period of 19 years. Therefore, the said persons cannot be penalized due to the negligence of the petitioners. He placed his reliance on 1982 S C M R 285 and 1982 C L C 436.

5. I have considered the arguments perused the case record and other related documents and seen the sketch map prepared by the Patwari. It is evident that the scheme was confirmed on 30‑6‑1965 and the respective schemes No.269/374 of Wahid Bakhsh and No.268/369 of Muhammad Amin Khan were modified on 23‑4‑1965 i.e. earlier to confirmation of the scheme as a whole. The learned counsel for the respondents has urged that this is to be treated as an exchange between the parties because the order was made in the presence of the parties and they had willingly exchanged some of the lands in their respective schemes and in token of acceptance had affixed their signatures or thumb‑impressions as the case may be. There is some substance in this argument as Wahid Bakhsh does not seem to have challenged the factum of amendment in his scheme during the three years he lived thereafter. There is no illegality in this exchange which was made between two scheme‑holders before final confirmation of the scheme. At this stage it is not possible to determine whether the exchange was bona fide or done through fraudulent means as asserted by the learned counsel for the petitioners and it can at best be a matter for conjectures. However, neither Wahid Bakhsh deceased nor his legal heirs challenged this fact which was duly incorporated in the record of rights prepared at the conclusion of Consolidation operations and subsequently in the revenue record by way of mutations dated 21‑5‑1975, 26‑6‑1975 and 28‑4‑1986. Petitioners Nos.3 to 17 purchased the land from petitioners Nos.1 and 2 and respondent No.18 in 1975 and 1986 and hence they purchased the land as had been available in the revenue record, which does not support their contentions because specific Khasras numbers are given in the Consolidation record of rights 1965‑

66. Wahid Bakhsh's inheritance Mutation No.132 was attested on 22‑3‑1968. Further, that the petitioners Nos.3 to 17 are neither the original scheme‑holders nor the legal heirs of the original scheme‑holder and they came up in appeal before A.D.C./Collector (Cons.) nearly 19 years after the confirmation of the scheme. It has been consistently held by the Board of Revenue that a person acquiring interest in the land after confirmation of the scheme cannot be treated as an aggrieved party under section 11 of the Ordinance ibid and hence not entitled to hearing as held in P L D 1975 (W.P.) Rev. 24 and several other authorities. As is evident from the report of the Local Commission and also admitted by both the parties the disputed property has undergone enormous physical changes during these twenty years, changing its very nature and character which should have been visible to any interested person. The petitioners have, therefore, no case as regards limitation. As regards merits they came up in appeal when this revenue estate was not in. consolidation and the Consolidation Department had become functus officio and that the original scheme‑holder never challenged the scheme. Their plea regarding urban nature of the land is not tenable at this stage because this objection should have been raised at the first opportunity when the revenue estate was taken up for consolidation. This was presumably not done because there is no such indication from the record. The petitioners' contention that there was no limitation before the Additional Commissioner (Cons.) is correct but to the extent of revision under section 13 of the Ordinance ibid if they had gone up directly before the Additional Commissioner (Cons.). But in the instant case the petitioners went in appeal before the Collector (Cons.) under section 11 of the Ordinance for which limitation has been prescribed. After dismissal of the appeal, .the petitioners preferred a revision before the Additional Commissioner (Cons.) whose function at that stage was restricted to the examination of proceedings before the lower Court and whether any illegality, impropriety or irregularity had been committed which in the present case was none, and therefore, he rightly dismissed the revision petition. His observation that the amendments made by the Assistant Consolidation Officer in the schemes of the parties were not correct overlooks the fact that these adjustments were made before final confirmation of the scheme and had not been made unilaterally by the Assistant Consolidation Officer but at the request of two scheme‑holders. Reopening the case under section 13 of the Ordinance by the Additional Commissioner (Cons.) in the absence of cogent reasons would have resulted in avoidable litigation and hardships to many bona fide purchasers of disputed land.

6. In these circumstances the orders of both the Courts below are correct and valid and have been made on right consideration and are accordingly upheld. The revision petition, therefore, fails and is consequently dismissed. AA./455/R Revision dismissed.