P L D 1959 W (PLP)

This case relates to the partition of a large Shamilat area in the estate of Rahdari and has been pending between the parties 'for a large number of years. The Civil Courts decided that the measure of the rights of the shareholders in the Shamilat should be in accordance with the records prepared in the course of the Second Settlement. The records concerned are the jamabandi described as the `Misl‑i‑Haqiat' of 1889‑90 and a statement of Tirniguzars appended to that record. The Shamilat is to be partitioned Hasabrased Zar‑i‑Khewat and Trani or, in other words, in proportion to the amount paid as land revenue and Tirni. The assessment of the estate of Rahdari in the First Settlement was Rs. 375 per annum, and remained unchanged as a result of the Second Settlement. The Bachh process, was, however, altered, previous to second settlement, land revenue was levied at 0‑7‑0 per bigha on Chahi and 0‑2‑0 per bigha on Barani lands. The excess over the amount so levied was charged as a tax on the heads of cattle in the estate. The new system introduced at the time of the Second Settlement was that land revenue would first be levied at the rate of 0‑2‑0 per bigha on Chahi and Barani and 0‑1‑0 per bigha on Wari lands. The Record‑of‑Rights bearing the date 1889‑90 was prepared before the orders of assessment and the orders of its distribution were passed by the Settlement Officer. The Record‑of‑Rights mentioned above does not refer to any land by the description of Wari. The result is that the decisions of the Civil Courts cannot be implemented on the basis of `Misl‑i‑Haqiat' and the statement of Tirniguzars of 1889‑

90. When the Assistant Collector I Grade was confronted with this problem, he arrived at the following decisions on 14‑3‑54 :‑ (1) The statement of Tirniguzars shows a total amount of Rs. 294‑15‑

0. He reduced this figure lo Rs. 237‑10‑3 assuming that the total figure included cesses at the rate of Rs. 18‑12‑0 per cent. (2) On this basis, he assumed that land revenue chargeable on lands was Rs. 137‑5‑

9. He assessed all the bighas of the jamabandi of 1889‑90 on the basis of 0‑2‑0 per bigha on Chahi and Barani lands and 0‑1‑0 per bigha on Banjar Jadid and Banjar Qadim lands. He got a total figure of Rs. 141‑3‑6, which was in excess of the required figure by Rs. 3=13‑

9. He _ said that this excess should be spread over all the Khatas. These decisions were contested in the Court of the Collector y way of an appeal filed by the present petitioner. This appeal . was accepted on 6‑10‑

55. The Collector's decision was that the measures of the individual rights could not be worked out on the basis of the existing decisions and he, therefore, required that the parties should have recourse to the Civil Courts once again in order to get the matter finally decided. The present respondents went to the Commissioner in second appeal and he accepted their request on 10‑4‑56 directing that the order of the Assistant Collector dated 14‑3‑54 should remain unimpaired. The petitioner came up to me in revision. The Commissioner's order was merely based on the fact that the Collector was not competent to hear the appeal of the present petitioner, because the appeal had been lodged before him more than 15 days after the date of the Assistant Collector's order. This reasoning was based on the fact that the Punjab Land Revenue Act initially did not provide for an extension of the limitation period on the ground that the party concerned did not have notice of the order passed against him. This position was, however, changed in 1955 as a result of the passage of the Punjab Land Revenue (Amendment) Act XIX of 1955, which came into force on 9‑4‑

55. The appeal of the present petitioner had been lodged before the Collector before that date but it was decided subsequent to that date. Thus, it is doubtful that the petitioner could take advantage of the change in the law of limitation referred to above. It is, however, clear that if a wrong decision was taken by the Assistant Collector in the first instance, I would, be justified in revising it at this stage. The two contesting parties before me represent the Khewatdars and the Tirniguzars respectively. The decisions which the Civil Courts gave regarding the measure of the rights of Khewatdars and Tirniguzars silent on the question of the proportion in which the two classes inter se should share the Shamilat property. As I have mentioned above, the Assistant, Collector has worked out a figure of Rs. 141‑3‑6 as the assessment in respect of the land of the Khewatdars. No decision of the Civil Court or any entry in the Revenue records justifies a calculation on the basis adopted by him. Until, therefore, the parties agree to this basis or until a competent Civil. Court passes a decree on that basis binding both the parties, the basis cannot be considered as fair between the parties. I notice that the actual land revenue charged on the various Khewats in the jawabandi of 1889‑90 amounts to Rs. 139‑9‑

0. The actual amount which was charged from Tirniguzars in that year was Rs. 199‑15‑0, because some land revenue, amounting to Rs. 35‑8‑0, had also been levied on the Shamilat lands in accordance with the provisions of the `Wajib‑ul Arz'. The parties are not agreed regarding the manner in which this sum of Rs. 35‑8‑0 should be dealt with in deciding the proportion of the Shamilat lands which should go to the Tirniguzars and the Khewatdars respectively. In the above circumstances, I conclude that the Assistant Collector should not have passed the order which he did on 14‑3‑

54. He should have instead decided to consign the papers to the Record Room with z direction that he would re‑open the question after the parties had got this matter determined in a competent Civil Court. I, therefore, direct that such an order should replace the said order of the Assistant Collector. It appears that one of the Khewatdars actually also put in a suit in a Civil Court claiming that the basis of shares worked out by the Assistant Collector on 14‑3‑54 should not be binding on the parties. This suit was dismissed by the trial Court. An appeal to the District Judge was also unsuccessful. A second appeal i s now pending in the High Court. I can, therefore, take note of the fact that though the partition file should have been consigned to the Record Room on 14‑3‑54, yet it can be placed again on the pending file as a result of the decisions taken by the Civil Courts after that date. The officer conducting the partition wouta not be required to wait for a decision of the second appeal in the High Court. If the decision of the Civil Courts now confirms the basis which the Assistant Collector had worked out, he can proceed to complete the partition proceeding in accordance there with. This, of course, is subject to the present petitioner or, some other Khewatdar seeking the partition proceeding to be stayed by an order of the High Court. The question arises whether any shareholder has been put in possession of this individual share as a result of the partition proceeding which the Assistant Collector continued at the spot pending the appeal before the Collector or subsequent to the appellate decision of the Commissioner. When I issued a stay order in this case on 20‑6‑56, some of the respondents : reported to me that they had already been put in possession and I, there fore, recorded a decision on 13‑8‑56 to the effect that the stay order would not have any retrospective effect. The decision of the present petition for revision is that the partition proceeding which took place after 14‑3‑54 was an incorrect proceeding. It is; therefore, possible that some person who was deprived of the p9ssesgJon of some land of the instance of one of the respondents, may seek to be restored to the land of which he was so deprived. The decision on such a case should be taken by, the Assistant Collector after hearing the parties concerned. The party of the Tirniguzars will always be entitled to refer to the decisions which the trial and the Appellate Court have taken in the civil litigation subsequent to 14‑3‑

54. K.M.A. Case remanded.