P L D 1962 W (PLP)

Abdul Majid Asghar for Petitioners. Javid Iqbal and Ghulam Ali Alvi for Respondents. The facts briefly are that in execution proceedings in the Court of Magistrate 1st Class, Lahore, for the recovery of arrears of maintenance of Rs. 2,700, it was ordered that the amount be recovered by attachment and sale of the defaulter (respondents) pro perty. The Naib Tehsildar thereupon attached 1/2 share of land com prised in Khasra Nos. 2954 to 2961 situated in village Khui Miran Tehsil Lahore, belonging to the respondent and sold it through an open auction for Rs. 15,000 in favour of the petitioner on 1‑2‑1957. The sale was confirmed by the Collector on 12. 1‑1959 after hearing the objections of the interested parties. The appeal preferred against this order before the Commissioner, Lahore, was dismissed on 5‑1‑1960. A review petition, however, was lodged with the Commissioner, Lahore, who after obtaining sanction from the Board of Revenue, set aside the sale on the ground that in view of section 16 of the Punjab Alienation of Land Act the land, being owned by a member of the agricultural tribe could not be sold in execution of decree or order of any Civil or Revenue Court. The auction‑purchaser, namely, Feroz Din, petitioner, has now filed this revision petition against order of the Commissioner, Lahore Division. The following two points have been pressed before me during arguments and these are dealt with below :‑ (i) that the application for review was barred by time and should have been dismissed. I find from the record that my learned predecessor M. Z. Khan Member, Board of Revenue, permitted the review on 17‑6‑60, on a reference from the Commissioner. The question of limitation in cases of this kind does not rise as the Land Revenue Act gives ample scope for a Commissioner or for the Board of Revenue to call for any file and to pass appropriate orders, including orders permitting a subordinate Revenue Officer or Court to review an order passed by his predecessor after hearing the parties ; and (ii) the respondents, who is a Sheikh by caste has failed to prove that he is from an agricultural tribe. This point was urged before the Commissioner also. I agree with his finding that after Notification No. 657‑R, dated 3‑4‑50 the respondent must be deemed to be a member of an agricultural tribe and hence entitled to protection from the sale of his land in execution proceedings. This notification provides that all persons holding land as landlords or tenants‑shall be deemed to be members of agricultural tribes. The learned counsel for the petitioner has argued that the land sold is not "land" within the definition under section 2 (3) of the Punjab Alienation of Land Act, i.e., land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pas ture".‑It is true that according to revenue records field No. 2954 (measuring 4 Kanals 8 Marlas and 148 ft.) is shown as under a factory in the Khasra Girdawari since 1951 and field No. 2960/1 (measuring 7 Marlas) as building site. The remaining fields Nos. 2955 to 2959 (measuring 4 Kanals 1 Marla) were cultivated until 1954 and were entered in the Khasra Girdawari of Kharif 1956 as banjar jadid. Subsequently, they were recorded as building sites. It, therefore becomes abundantly clear that a substantial part of the land sold in auction fell within the definition of agricultural land and was precluded from sale and execution of the Court order. This being the position and since the agricultural land and site of a factory and budding site were all sold in one lot and the sale bid cannot be bifurcated, I find that it was contrary to the provisions of section 16 (1) of the Punjab Alienation of Land Act, 1900. The revision is, therefore, rejected. The petitioner had prayed that since he deposited the auction money in the Treasury three years ago, this may be immediately refunded to him. I would order accordingly. The respondent's counsel has also stated that his client has since deposited the arrears of maintenance, which led to the auction proceedings. In view of all the circumstances of this case, I would leave the parties to bear their own costs throughout. K. M. A. Revision rejected.