2000 PLP 2036 (MLD)

Malik Ghulam Siddique Awan for Petitioners. Ch. Iqbal Ahmad Khan for Respondents. This case is about correction of Khasra Girdawari in respect of land comprising Square No.56, Khasra Nos.21/2, 22, 23, 25/2, Square No.57, Killa Nos.21, 22, 23, 24, Sqaure No.60, Sqaure No.4/1 measuring 46 Kanals, situated in Chak No. 127/NB, Tehsil and District Sargodha for Kharif 1986, Rabi 1987 and Kharif 1987. This land was purchased through registered sale‑deed No. 1841 dated 14‑10‑1969 by Ch. Muhammad Shabbir, Muhammad Ashraf and Muhammad Saghir in equal shares. The possession of the land was delivered to the owners. Under the column of cultivation, the statement "Khud. Kasht Maqbooza Malkan" was recorded. In Kharif 1986, entry under the column of cultivation was changed and Ch. Muhammad Shabbir, co‑sharer, was shown to be in cultivating possession of the subject land. No reason for the change of this entry was recorded in Roznamcha Waqiati. Muhammad Ashraf and Muhammad Saghir challenged this entry and D.C./Collector vide his orders, dated 30th of December, 1990 ordered for deletion of entry in favour of Ch. Muhammad Ashraf for Kharif 1986, Rabi 1987 and Kharif 1987. The previous statement of "Khud Kasht and Maqbooza Malkan" was allowed to be recorded in the statement. This order was challenged before Additional Commissioner (Consolidation), Sargodha Division who vide his order, dated 31‑8‑1991 upheld the order of D.C./Collector. The present revision petitions have been filed against this order, dated 31‑8‑1991 of Additional Commissioner (Consolidation), Sargodha Division.

2. The learned counsel for the petitioner stated that the subject land had been purchased by Muhammad Shabbir to the extent of one‑third in his own name and the remaining two‑third in the name of his father in a Benarni transaction although in the sale‑deed names of his brothers were mentioned. His father gifted two‑third share to Muhammad Shabbir's wife. This gift was resisted by Muhammad Ashraf and Muhammad Saghir in a civil suit. The Civil Court issued status quo. Despite the currency of status quo order issued by the Civil Court, D.C./Collector proceeded to change the entries of Khasra Girdawari for Kharif 1986, Rabi 1987 and Kharif 1987. It is contention of learned counsel for the petitioner that under the instructions of the Board of Revenue; Additional Commissioner is not competent to hear appeals against' A the order of D.C./Collector. It is stated that the order of D.C./Collector whereby respondents were to be entered as being in cultivating possession of the land was not maintainable since the respondents were not residents of the Chak. One of them (Muhammad Ashraf) is resident of Sillanwali and the other Muhammad Saghir is serving in Rawalpindi. Khud Kasht Maqbooza Malkan was, therefore, an erroneous entry ordered to be made by District Collector vide his order, dated 31‑12‑1990. Both the lower Courts fell in error in ordering that entry of Khud Kasht Maqbooza Malkan be made. It was further argued that Aabiana etc. in respect of the entries land was being paid by the petitioner on his own and on behalf of his wife. It was averred that after the gift made by Haji‑Phool Muhammad in favour of wife of the petitioner, the petitioner came into possession of the land in 1985 and this position resulted into change of entries of cultivating in Khasra Girdawari. At the time of purchase of the land one Muhammad Nawaz was cultivating the land as tenant. He was ejected under orders of Revenue Officer Halqa.

3. It was stated by learned counsel for the respondents that the land was purchased by the present petitioner Ch. Muhammad Shabbir and respondents Muhammad Ashraf and Muhammad Saghir in the year 1969 through registered sale deed. As against the submission of learned counsel for the petitioner that one‑third was purchased in the name of the petitioner and two‑third in the name of his father, the learned counsel for the respondents stated that Ch. Muhammad Shabbir, the present petitioner, on the basis of the general power of attorney given by Muhammad Ashraf and Muhammad Saghir transferred their share in the joint ownership in favour of their father. The respondents filed civil suit against this gift deed. The suit was decreed in favour of the respondents on 26‑12‑1986. Under the column of ownership, the three brothers were shown to be in cultivating possession of the land and under the column of cultivation "Khud Kasht Maqbooza Malkan" was entered. After the passage of order by the Civil Court Mutation No.3322, dated 18‑12‑1986 was entered. In Kharif 1986, the land was vacant at site and the petitioner got his name entered in the column of cultivation without reference to any entry in the Roznamcha Waqiati. The respondents thereafter submitted applications for correction of Registered Girdawari to D.C./Collector. The D.C,/Collector allowed the correction. The petitioner went in appeal before Commissioner who remanded A.C./Collector. A.C./Collector went to the site on 6‑11‑1989 and mentioned in his report that the land at site is vacant and has not been cultivated for the last 2‑1/2 years. It was stated that since the land was jointly owned by all the three brothers, therefore, it would be considered in joint possession of all of them. Since the land had not been cultivated for the last 2‑1/2 years prior to the inspection of A.C./Collector and was found to be vacant at site, therefore, in accordance with the procedural instructions contained in Chapter 7, para. 1(c), it was to be shown as being in joint possession of co sharers. In support of his contention, the learned counsel for the respondents referred to PLD 1991 Revenue 10, PLD 1966 W.P. (Revenue) 164, PLD 1988 Revenue 68.

4. I have given careful consideration to the arguments of the parties. It is clear from the record that the land was jointly purchased by three brothers. Prior to Kharif 1986, the land under the column of cultivation was shown to be in the joint possession and cultivation of the co‑owners. Statement under the column of cultivation was recorded as "Khud'Kasht Maqbooza Malkan". The change of this statement in Kharif 1986 in favour of Ch. Muhammad Shabbir without any legal sanction was therefore, unwarranted. The land was vacant at site and as such under the provisions of procedural instructions and the authorities cited by learned counsel for the respondents, it had to be shown in possession of the joint owners. The civil suit and the issue involved therein such as Benami transaction and gift of property in the name of wife of the present petitioner cannot have any hearing on the question i.e. change of entry for Kharif 1986 and thereafter. Regarding competence of Additional Commissioner to hear cases decided by D.C./Collector, the orders in such cases if they fulfil requirements of law, equity and justice, cannot be termed bad merely because there are instructions on the subject issued by the Board of Revenue stipulating that cases against the orders of B D.C./Collector be heard by Commissioner himself. There is no illegality or infirmity in the order of Additional Commissioner. It, therefore, cannot be termed as bad merely because the orders or executive instructions of the Board were not complied with. Under the Land Revenue Laws, definition of Commissioner includes the Additional Commissioners. In view of the aforesaid there is no force in the pleadings of the petitioner that the entry allowed to be corrected by D.C./Collector vide his orders, dated 30‑12‑1990 which was upheld by Additional Commissioner vide his order, dated 31‑8‑1991 be set aside. Resultantly, all the four .revision, petitions are dismissed and concurrent findings of the lowers Court on facts are upheld. H.B.T./17/Rev. Petitions dismissed.