P L D (Rev (PLP)

AKHTAR HUSSAIN. F. C.‑This is a revision petition against the order of the Commissioner, Multan Division, dated 8th November 1951, by which he rejected the appeal of Diwan All petitioner, and upheld the order of the Collector Lyallpur, dated the 6th May 1951, whereby he had appointed Bahadur as lambardar In Chak No. 42/JB Tahsil and district Lyallpur in place of Maujdarya lambardar who died on 17th October 1949. The history of this lambardaris is that originally the estate was divided into two pattis t viz., Bar and Matmal. In 1902 a third patti was formed for Asis, and one Balawal was appointed lambardar. Balawal was dismissed from this lambardari on 23rd July 1917, on account of absence from the Chak and Maujdarya was appointed in his place by the Collector's order dated 12th June 1918, which ended as follows :‑ "The case has been pending since 23rd July 1917. In this period I appoint Maujdarya lambardar on the condition he finds security of Rs. 1,500 for the Government demand. He should file the security within a month or I will consider the case." The words "in this period" have led the Collector to assume that the appointment was temporary. I, however, think that the word 'period' appears to have been misquoted as it signifies nothing. The word probably is 'patti'. In 1936 a fourth patti was added to the village, and it was probably then that the lands of Asis and Nekokars, to which latter category Maujdarya belonged, were combined into one patti. Maujdarya died on 17th October 1949. Of the five candidates who applied for the post sere the petitioner Diwan All son of Maujdarya and the respondent Bahadur son of Balawal, the Asts lambardar who was dismissed in 1917. The Collector, by his order dated 16th May 1951, appointed Bahadur as lambardar, mainly on the ground that he was an Asi and the patti consisted chiefly of members of his tribe. The reasons for ignoring the claims of Maujdarya were :‑ (1) Maujdarya's appointment was temporary and not on account of hereditary claims. The Rule of Primogeniture did not therefore apply in appointing his successor. (2) Diwan All was not a reliable or respectable person. He was involved in many cases and adversly reported on by the Police. He was addicted to opium and was reputed to be a receiver of stolen property. As I have stated above, the Collector has relied obviously on the word 'period' to assume that the appointment was temporary. Actually from the Commissioner's order dated 29th July 1918, it is clear that the appointment of Maujdarya was under Rule 17 (i). The Commissioner, by his order dated 8th November 1951. also upheld the order of the Collector without considering the hereditary claims of the petitioner, and on the main ground that the respon dent belonged to the majority community and a community for which the lambardari was originally created. The first point for consideration in this case is whether the lambardari is governed by Rule 17(i) or 17(ii) of the Land Revenue Rules. In other words, whether the estate or the sub‑division of the estate is owned chiefly or altogether by Government. As already mentioned, the estate is at present divided into four parties as below : Name of lambardar Area owned by Area owned Government by proprietors Acres. Acres. Bahadur, Bar ... 206 ... 256 Sohna, Bar ... 188 ... 287 Sultan, Matmal ... 228 ... 468 Bahadur, Asi ... 216 ... 159 Total 838 1,170 It will be seen that the last patti, of which the lambardari is in question is chiefly owned by Government. It has been argued by the learned counsel for the petitioner that the above pattis were created for fiscal purposes only, and that they did not constitute a sub‑division of the estate as contemplated under Rule 17(i). The following rulings of the Lahore High Court have been quoted In support of this contention :‑ A I R 1937 Lah. 703 3 A I R 1947 Lah. 322 ; P L D 1951 Lab.

437. These rulings only lay down what should be considered sub division of the estate as contemplated in section 15 (c) of the Punjab Pre‑emption Act. A `sub‑division' has not been defined anywhere in the Land Revenue Act, 1887, and it has to be cons trued in its ordinary dictionary meaning as a division of an estate with reference to the particular purpose for which a particular rule or law has been framed. If, for purposes of the Punjab Pre‑emption Act, a sub‑division is to be a distinct unit "on real or assumed basis of kinship", it does not necessarily follow that in matters of collection of land revenue or appointment of lambar dars the same definition of sub‑division will apply. If an estate has been sub‑divided for fiscal purposes by a competent authority into separate units or pattis, such units or pattis have to be considered as sub‑division within the meaning of Rule 17 of the Land Revenue Rules, These sub‑divisions may be, on the basis of religion, tribe or caste, or on historical considerations. I, there fore, hold that the patti in question in this case is a sub‑division within the meaning of Rule 17 of the Land Revenue Rules, 18875 and, as it is still chiefly owned by Government, Rule 17(1) applies. As the new lambardar has to be appointed under Rule 17(i) the selection has to be without regard to hereditary claims. It is true that in this particular patti Asis are In a majority ; and if a suitable Asi candidate is forthcoming he should be given pre ference over a non-Asi. There are 72 Asi owners and tenants possessing 94 squares as compared with 8 Nekokars possessing 42 squares. Babadur is an Asi candidate. But he suffers from two drawbacks :‑ (a) He only possesses 11 kanals and 12 marlas In this Chak as compared with 103 kanals possessed by Diwan All. (b) As admitted by Bahadur before the Commissioner, he does not reside In the Chak. He is living in Chak No. 129 at a distance of 4 or 5 miles. The learned Commissioner has held that the distance is obviously not so great as to make it impossible for the respondent to attend to his duties of a lambardar and dlicharged them satisfactorily. It has been held in several rulings of this Court, viz :- 1924 L L T 30, 1931 L L T 16, 1941 L L T 153 and 1945 LLT10. that in peasant‑grantee Colony Chaks It is necessary that the lambardar should be a genuine resident, and that an absentee must not be appointed as lambardar when a suitable resident candidate is available. The history of this lambardari also shows that the father of the respondent was dismissed for being an absentee from the village and it would be very unwise to appoint the respondent as lambar dar when he is also not residing in the village. On the other hand, Diwan Ali resides In the Chak and the only disqualification that is alleged against him, is that he has not receiv ed satisfactory character reports from the Police. I am Inclined to ignore these reports as they are more often than not based on personal consideration ; and unless there are specific allegations and recorded suspicions, such reports should not be taken into account. I, therefore consider that in appointing Bahadur both the Collector and the Commissioner have given undue stress on his being an Asi without taking into account the fact that he possesses very small area In this Chap and, what is more important does not reside there. This has caused grave miscarriage of justice, and set aside the orders of both the Collector and the Commissioner appointing Bahadur as lambardar and appoint Diwan Ali, peti tioner, lambardar in Chak No. 42‑J‑B., Tahsil and district Lyallpur, In place of his father Maujdarya. Parties should be informed. A.H. Petition accepted.