2001 PLP 518 (CLC)

‑‑‑‑Act of public functionary‑‑‑Nobody should be penalized by the act of public functionary. Abdul Latif's case PLD 1994 Lah. 3 ref. Qazi Khurshid Alain for Petitioners. Malik Noor M. Awan for Respondents. Date of hearing: 9th October, 2000. The brief facts out of which the present writ petition arises are that the predecessor‑in‑interest of the petitioners filed a suit for possession against respondent No.4 and predecessor‑in‑interest of respondents Nos.5 to 30 of the land in question measuring 786 Kanals and 14 Marlas situated in Khata No. 182 Khasra Nos.895‑940‑938‑939, 2543/944, 958, 960, 961, 893 and 2528/942/994 and 1/2 share of Khata No.183/619 Khasra No.2253/664, 2254/664, 2255/664 measuring 57 Kanals and 11 Marlas with a share in the un-partitioned Shamlat Deh on the basis of Jamabandi of 1939‑40 relating to village Mauza Khansar, Tehsil and District Bhakkar in the Court of Civil Judge, Bhakkar. The learned Civil Judge decreed the suit in favour of the predecessor‑in‑interest of the petitioners vide judgment and decree, dated 18‑7‑1944. Respondent No.4 and predecessor‑in‑interest of respondents Nos. 5 to 13 being aggrieved filed. appeal before the District Judge, Mianwali who accepted the same vide judgment and decree, dated 28‑2‑1945. Predecessor‑in‑interest of the present petitioners being aggrieved filed Regular Second Appeal No. 1321 of 1945 before this Court which was accepted by this Court vide judgment dated 25‑3‑1947 and upheld the decree of the trial Court. The decree of the Civil Court was executed vide Roznamcha Waqiati dated 25‑5‑1948. Subsequently Mutation No.8367 was also sanctioned in favour of the predecessor‑in‑interest of the petitioners on 13‑2‑1954. The mutation was sanctioned qua 249 Kanals and 13 Marlas in favour of the predecessor‑in‑interest of the petitioners in the aforesaid mutation instead of 786 Kanals and 14 Marlas. The aforesaid mutation was sanctioned in favour of the decree‑‑holder qua Khata No. 182 but no mutation was sanctioned qua the land of Khata No.183. The petitioners submitted an application before the Settlement/Officer/Collector, Bhakkar for incorporation of the decree dated 25‑3‑1947 in the Revenue Record which was accepted vide order, dated 4‑9‑1980. Respondents Nos.4 to 13 being aggrieved filed appeal before the learned Additional Commissioner Consolidation, Sargodha Division, Sargodha who dismissed the same vide order, dated 5‑7‑1981. The respondents Nos.4 to 13 being aggrieved filed revision petition before the Member (Revenue), Board of Revenue who dismissed the same vide order, dated 25‑6‑1983. The respondents Nos.4 to 13 being aggrieved filed Writ Petition No.3051 of 1985 before this Court which was also dismissed vide order, dated 5‑5‑1985. The land of the area in question was acquired by operation of law by the Thal Development Authority under the provisions of the Thal Development Act, 1949. As the original decree which was upheld by this Court could not be incorporated in full by the Revenue Department, therefore, instead of the names of the petitioners the name of the predecessor‑in‑interest of respondents Nos.4 to 13 was entered as owner of the remaining land in the record prepared by the T.D.A. regarding the land not mutated in the name of the predecessor‑in-interest of the petitioners. The original Khata No.183 was also changed. It was numbered as Khata No.217. Khata relating to Shamlat was also change into Khata No.

300. Missal Adjustment No. 177 of the village in question was prepared so as to return land to the original owner. The petitioners filed an application to the E.A.C.O. who accepted the same ‑vide order, dated 5‑3‑1987 but subsequently vide order, dated 17‑12‑1987 adjusted land measuring 328 Kanals pertaining to Khata No.217 in the name of the petitioners in Missal Adjustment No.177. The E.A.C.O. did not adjust the whole land in favour of the petitioners as decided by this Court in the judgment and decree, dated 25‑3‑1947. Respondents Nos.4 to 13 being aggrieved by the aforesaid orders filed two appeals before the learned Additional Commissioner (Revenue), Sargodha Division, Sargodha: The petitioners also filed appeal against the order, dated 17‑12‑1987 before the same Court. The appeals filed by the respondents Nos.4 to 13 were accepted by the Additional Commissioner, Revenue while the appeal filed by the petitioners was dismissed vide order, dated 12‑7‑1988. The petitioners being aggrieved filed a revision petition before the Member (Colonies), Board of Revenue which was disposed of vide order, dated 22‑6‑1989 and upheld the order, dated 17‑12‑1987 passed by the E.A.C.O., Bhakkar while the claim of the adjustment of the remaining disputed land in the name of the petitioners was turned down. The petitioners being aggrieved filed the present writ petition.

2. The learned counsel for the petitioners submits that the Civil Court's decree passed in 1944 was to be implemented in the Revenue Records and the respondents authorities are in error of jurisdiction in refusing to give effect thereon on the pretext that execution was not sought within limitation. He further submits that matter has been finally settled up to this Court in .the Revenue side, therefore, impugned orders are not sustainable in the eyes of law. He further submits that petitioners are penalised by the inaction of the petitioners arid of the suit filed by the petitioners under section 9 of the Specific Relief Act. The apprehension of the petitioners is not well‑founded. The Civil Court will decide the suit on its own merit. There is no force in the petition. The petition is dismissed. " It is also settled principle of law that no body should be penalized by the act of public functionary as per principle laid down by this Court in Abdull8 Latif's case PLD 1994 Lah:

3. In view of what has been discussed above the writ petition is accepted with no order as to cost. Resultantly the order of E. A. C. O./Collector, dated 5‑3‑1987 is upheld. Q.M.H./M.A.K./K‑46/L Petition allowed.