1985 PLP 1673 (SCMR)

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97. Disposal of land resumed as a result of fresh inheritance.‑ As a result of fresh inheritance, the holdings of certain declarant owners and other persons again exceed the limits prescribed in paragraph 8 or 9 (a) of the Regulation. In order to re‑determine their holdings, a procedure was laid down for submission by them of declarations in forms LCXXI and LCXXII as explained in paragraph 7 of this Volume. The excess area was resumed from them. The following procedure has been laid down for the disposal of the area resumed from such declarants:‑ (a) Tenants, who are in possession of the resumed land, on the date of death of the person, on account of whose death inheritance opens, should be allowed to purchase the land in their possession, in accordance with the provisions of Sale Scheme. (b) If, however, any such tenant has already left the land wilfully or has been ejected legally, then the tenant, who is cultivating the land in his place at the time of the passing of the resumption order, should be allowed to purchase it, in accordance with the provisions of the Sale Scheme. (c) to (j)

3. Now to further state the narration of the relevant facts it may be observed that the first order of resumption was made on 13‑11‑1963, by the Deputy Land Commissioner, Bahawalnagar, in the case of declarant Hafiz Ghulam Farid, whereby it was ordered that the subsequently inherited area by the declarant be resumed in favour of the Land Commission. However, the declarant being dissatisfied with this order carried on prolonged litigation before the various officers of the Land Commission until the final order of resumption was passed on 16‑10‑1969 by the Deputy Land Commissioner, Bahawalnagar, whereby the declarant was allowed to retain 30 Kanals of land and the remaining measuring 90 Kanals was ordered to be resumed, which was to be sold to the tenants in cultivating possession under paragraph 19 of the Martial Law Regulation No. 64 read with paragraph 97 of the Instruction referred to above.

4. The present controversy properly arose between the parties at this stage. According to the appellant, on 23‑5‑1970 the land in dispute was sold to respondent Abdur Rehman by the Assistant Land Commis sioner. This order was challenged in appeal by the appellant but his appeal was dismissed by the Deputy Land Commissioner, Bahawalnagar, on 3‑8‑1970. The Deputy Land Commissioner held that in the light of the record particularly the Jamabandis for the years 1957, 1958, 1961‑62 and 1965‑66 Abdur Rehman was in possession of the land. In terms of paragraph 97 clause (a) he was, therefore, found entitled to the land by virtue of his possession on the date of the death of Pir Muhammad Yar, on account of whose death inheritance had opened. He also found on the basis of the report of the Tehsildar that Abdur Rehman had not wilfully left the land. Accordingly the learned Officer upheld the allotment in favour of the said respondent.

5. Against this order the appellant went up in revision before the Land Commissioner; Bahawalpur Division, Bahawalpur, who held as under:‑ "As far as the question of determining the possession of land is concerned, the material date will be the date on which the succession opened, namely date of demise of Pir Muhammad Yar. The contention of Deputy Land Commissioner to this extent is acceptable to the counsel of both the parties and is upheld. Next we have to decide as to who was in actual possession of land in Kharif, 63 and Rabi

64. On this the parties dispute each other's contention. The Patwari has not brought the Jamabandi to clarify the position and some doubt has been raised regarding entries in Khasra Girdawari. The revision is accepted and the order of the learned Deputy Land Commissioner Bahawalnagar dated 3‑8‑1970 is vacated. The case is remanded to the Deputy Land Commissioner, Bahawalnagar for holding a thorough enquiry regarding possession of the disputed land during the above‑mentioned crucial period and deciding it in accordance with the provisions of law." On remand the case was reheard by the Deputy Land Commissioner, who examined the relevant records produced before him. According to his finding as recorded in his order, dated 7‑6‑1971 which is supported by Khasra Girdawari, Abdul Rehman was in possession of the land during Kharif 1963 and Rabi 1964. The matter was once again brought in revision before the Land Commissioner, who affirmed the finding recorded by the Deputy Land Commissioner and declined to interfere with the same vide his order, dated 30‑6‑1971. The appellant then went up in further revision before the Chief Land Commissioner, Punjab, who agreed with the orders passed by the Officers below and dismissed the revision by his order, dated 12‑2‑1972.

6. Having failed to get relief from the authorities of the Land Commission, the appellant came up before the Lahore High Court in constitutional petition and by the impugned order, dated 28‑4‑1972 a learned Judge of the High Court dismissed his constitutional petition in limine. The High Court upheld the view taken by the authorities below that Abdur Rehman, owing to his cultivating possession in 1963‑64 when the first order of resumption was made was entitled to the land.

7. Leave was granted by this Court to examine the question whether the words "at the time of the passing of the resumption order" as used in clause (b) of para. 97 of the Instructions can have reference only to the final order as it emerges after the remedies provided by way of appeal, and revision have been exhausted, and therefore, it would be the appellant and not the respondent who would be entitled to purchase these lands. The other contention considered fit for examination was whether the question of showing that the previous tenant wilfully left the land or had been ejected legally did not arise in the case, as this requirement has reference only to the tenant who is in possession of the resumed land on the date of the death of the previous owner whose case is covered by clause (a) of paragraph 97.

8. Learned counsel for the appellant referred to definition of the word "tenant" in the Sale Scheme according to which, inter alia, tenant means a person who is in actual cultivating possession of the area resumed under the Regulation and whose name is entered in column No. 2 of the register LCIX prescribed by Chief Land Commissioner. Reliance in this behalf was placed on a document purporting to be a copy of LCIX in respect of the land in question placed at page 42 of the printed paper book. According to the entries in this document this land was being cultivated by appellant and respondent Abdur Rehman jointly from 1960 to 1968. Thus, this evidence does not advance the case of the appellant that at the time of the death of Pir Muhammad Yar he was in possession of the land and even during the period mentioned Abdur Rehman is shown to be in cultivating possession alongwith the appellant.

9. In the memo of the petition in this appeal the case of the appellant was that one Abdul Hamid was in possession of the land at the time of the death of the previous owner and after that Abdur Rehman respondent came in, but his emphasis is upon his possession at the time of the resumption order. It is, therefore, clear that at no stage the appellant claimed to be in possession of the land at the time of the death of Pir Muhammad Yar, i,e. 7‑11‑1959. Be that as it may, apparently, by this argument, an attempt is being made to question the finding of fact concurrently recorded by the competent authorities under Martial Law Regulation No.

64. This cannot be allowed, especially when there is no indication in any of the impugned orders that this document was relied upon at any previous stage. The case has all along been contested on the basis of paragraph 97 of the Instructions, the vires of which has not been challenged before us.

10. A plain reading of the relevant part of paragraph 97 shows that the entitlement of a person is determined initially under clause (a) with reference to his possession the date of the death of the person, on account of whose death inheritance has opened as a result of which the holding of the declarant had exceeded the prescribed limits laid down by the Regulation. Clause (b) has to be read in conjunction with clause (a) and deals with the situation where the tenant originally in possession of the resumed land on the date of the death of the previous owner has left the land and another tenant is cultivating the same in his place "at the time of the passing of the resumption order." In such a case such person who has come into possession subsequently to the date of the death of such previous owner, would be entitled to purchase the land as a tenant provided it is shown that the tenant originally in possession at the time of the death of the previous owner had left the land wilfully or had been ejected legally. This being the position the entitlement of the original tenant does not cease even though he may not be in possession at the time of the passing of the resumption order. In the present case the facts found by the relevant authorities are the respondent Abdur Rehman did not voluntarily leave the land nor was he legally ejected. This finding was recorded by the Deputy Land Commissioner, Bahawalnagar in his order dated 3‑8‑1970, in accordance with the report of the Tehsildar and no material was pointed out to us to indicate that this finding was at any stage reversed nor is there any evidence to prove the contrary to the effect that Abdur Rehman had voluntarily left the land.

11. The contention of the learned counsel for the appellant that the burden of proof lay upon respondent Abdur Rehman to prove the fact that he was forcibly dispossessed has not impressed us. As pointed out the Tehsildar had reported that he had not left the land wilfully and the appellant does not seem to have controverted this evidence. In any case in order to support his claim for transfer of the land under clause (b) of paragraph 97, it was primarily his burden to prove the requisite conditions for his entitlement, which had been found not to have been proved by him by the relevant authorities. In these circum stances, it is not necessary to determine the question of law noticed in the leave granting order as to whether the final order of resumption would be relevant for the purpose of clause (b) of paragraph 97 or the initial order to that effect. On the other question of law, as discussed above, we are of the opinion that the question whether the previous tenant wilfully left the land or had been ejected legally was very much a relevant consideration, for the reasons that the appellant was claiming the right to purchase the land under clause (b), anti secondly that both clauses (a) and (b) of paragraph 97 are to be read conjunctively.

12. In view of what has been stated above, we are satisfied that no case for interference was made out by the appellant before the High. Court in its constitutional jurisdiction. The appeal fails and is accordingly dismissed with costs. M.I. Appeal dismissed.