2018 PLP 45 (YLRN)

MUDASSIR KHALID ABBASI, J.

Through this civil revision, petitioner has Challenged the legality of judgment and decree dated 20.5.2002 passed by the learned Civil Judge, 1st Class, Vehari and judgment and decree dated 15.06.2004 passed by learned Additional District Judge, Vehari.

2. Brief facts of the case are that petitioner's father Muhammad Hussain being a Member of Cooperative Farming Society, Chak No.196-WB, Tehsil Mailsi, District Vehari was allotted 2 acres 4 kanals of state land in Kharif 1954 comprising of Square No.222, Killa Nos.5, 7, 8 and 16, Square No.23/1, each measuring 4 kanals under' the Cooperative arming Society and vide order dated 11.07.1969 he was declared ineligible for acquisition of proprietary rights of said land. After the death of his father. petitioner filed an appeal against said order before Commissioner. Multan Division who vide order dated 10.09.1969 accepted the appeal and remanded the case to AC/Collector, Mailsi by declaring the petitioner eligible for acquisition of proprietary rights with a direction to make up the deficiency of the lot. AC, Mailsi vide his order dated 10.04.1971 allowed the petitioner to deposit the outstanding amount and allotted additional available land comprising of Square No.22, Killa Nos.14 to 18, 22 to 25, Square No.23, Killa Nos.6, 15 to

17. Thereafter, AC, Mailsi again resumed the said land vide order dated 01.10.1975 against which petitioner filed an appeal before Additional Commissioner (Consolidation), Multan who accepted the same vide order dated 09.12.1975. Conveyance deed was executed in favour of petitioner dated 22.10.1979 registered on 30.10.1979, Muhammad Nawaz Shah alias Allah Nawaz Shah filed an appeal before Additional Commissioner Revenue, which was dismissed with a direction to move under section 30(2) before District Collector, then he approached the District Collector who vide his report No.2084/CA dated 16.07.1990 sent recommendations to the Commissioner Multan to move the Board of Revenue for cancellation of the Conveyance Deed issued in favour of petitioner, who vide order dated 24.01.1995 cancelled the said conveyance deed. Petitioner challenged said order by way of filing a suit before learned Civil Judge 1st Class, Vehari who vide impugned judgment dated 20.5.2002 dismissed the suit Feeling aggrieved, petitioner filed an appeal. which met the same fate vide impugned judgment dated 15.6.2004.

3. Learned counsel for the petitioner contends that the impugned order passed by respondent No.2 dated 24.1.1995 is without lawful authority and against the spirit of section 30(2) of the Colony Act, 1912. Further contends that respondent No.2 was not competent to cancel the conveyance deed. Learned counsel for the petitioners has further contended that the judgment of the learned lower appellate court is based on surmises and conjectures, result of misreading and non-reading of evidence as material irregularity/illegality has been committed by the. learned courts below, therefore, the impugned judgments and decrees are liable to be set aside. He has placed reliance on PLD 1956 Lahore 94, PLD 1978 SC (AJ&K) 161, 1979 CLC 570, PLD 1983 Lahore 294, PLD 1990 Lahore 66, PLD 1993 Lahore 114, 1994 CLC 904, 1994 CLC 2110, 1996 SCMR 669, and 2003 CLC 504.

4. Conversely, learned counsel for the respondents has supported the impugned judgments and decrees contending that petitioner had got the conveyance deed executed on the basis of fraud, so the order dated 24.01.1995 was rightly passed. Moreover, there is no jurisdictional defect or illegality in the impugned judgments and decrees, therefore, this petition is liable to be dismissed.

5. I have given my conscious thought to the arguments advanced by the parties and have perused the record.

6. Primarily, there are three features of this case firstly, as to whether the petitioner was a lawful allottee of the suit land measuring 89-kanals and 12-marlas by virtue of conveyance deed executed in favour of the petitioner, secondly, as to whether the order lb; resumption of the suit land dated 24.1.1995 passed by the Board of Revenue/defendant/respondent was a lawful order and finally as to whether the private respondents were entitled for the decree to the effect that they are the actual allottee of the land. Issues on the afore-cited questions were framed besides other, issues by the trial court.

7. I have gone through the entire evidence produced by the parties and could not find any piece of evidence in shape of allotment or any other documents showing that the suit land was in fact allotted in the name of Shah Nawaz respondent. Therefore, finding/relief given by the trial court in favour of the respondents, in para 13 of the judgment, is without any basis. Conclusion drawn while deciding issue No.5, regarding entitlement of the private respondents/ defendants in paragraph No.13, wherein private: respondent Shah Nawaz has been held to be a bona fide allottee of the land in dispute. This issue was decided in favour of private respondents/defendants. It is quite strange that the said Shah Nawaz had merely filed an application before the Collector on the ground that the petitioner/plaintiff has obtained the allotment through fraud. An inquiry was conducted by the Collector, upon a report of the field staff, it was recommenced to the Board of Revenue by the District Collector that the allotment in favour of the petitioner may be cancelled upon, which order dated 24.1.19954, cancelling the allotment in favour of the petitioner 'was passed and this was challenged by the present petitioner/plaintiff before the learned Civil Court.

8. While deciding issue No.4, learned trial court in paragraph 8, of the impugned judgment has observed that the defendants/present respondents have failed to produce, orders dated 10.6.1969, 10.4.1979 and 11.7.1969 and it was upon the defendants/respondents to point out any fraud committed by the plaintiff/ petitioner. It was observed that the defendants/respondents have miserably failed to discharge the onus of this issue and it was decided against them.

9. Entire controversy revolves around Ex.P-18, order dated 24.1.1995 passed by the Board of Revenue, whereby the conveyance deed in favour of the petitioner was cancelled and the suit land was resumed in favour of the State. In paragraph-5 of this order it has been observed that "according to the Cooperative Farming Scheme self cultivation is a pre-requisite condition for the grant of proprietary rights. As per report of the field staff except for Khasra Nos.22, 23 (min), 24 and 25 Muhammad Nawaz Shah is cultivating the land in dispute since Kharif 1962 to-date."

10. Afore-referred admission, while passing the impugned order dated 24.01.1995, by the Member, Board of Revenue that Khasra No.22, 23(min), 24 and 25 measuring 20-kanals, according to the report Ex-D-4 is in occupation of the petitioner since Kharif 1962 to date. Since the resumption order was passed on the ground that according to the Cooperative Farming Scheme self cultivation is a pre-requisite condition for the grant of proprietary rights. However, petitioner's occupation/possession has been admitted to the extent of 20-kanals, therefore, this chunk of land could not be resumed in any case. What has been narrated above, this revision petition is partially allowed, judgments and decrees passed -by the learned courts below are altered on two counts, firstly, that the allotment/ conveyance deed dated 22.1.1979 in favour of the petitioner/predecessor of the petitioner, to the extent of 20-kanals comprising Khasra Nos.22, 23(min), 24 and 25 is a valid transfer and shall remain intact. Secondly, findings given in paragraph No.13 of the impugned judgment passed by learned Trial Court are set aside. ZC/M-114/L Order accordingly.