P L D 1972 Rev (PLP)

(a) That Suleman or his father Ismail or his brother Ghulam Muhammad have been in unauthorised occupation of part of the ihata and since he (Chakmal) was a regular allottee of the other part he had a more superior claim for the allotment of the balance of the ihata, (b) That Chakmal was an owner of 30 acres and had a large family which could not be accommodated in the portion of Ihata No. 37 in his possession. (c) That in pursuance of the order of Collector, dated 5‑10‑1970, he had already paid Rs. 50 for the Dehori of Ghulam Muhammad, Rs. 300 as price of Malba and Rs. 65 for rent for the part of the ihata allotted to him by the Collector for the year 1970‑71.

4. I have heard the learned counsel for petitioner Chakmal and respondent Suleman in great detail. I have also heard Chakmal and Suleman themselves and recorded their statements and seen the documents produced by the respective counsel.

5. As regards the question of unauthorised occupation of Suleman it has been accepted by him before me vide his recorded statement that he along with his deceased father Ismail and brother Ghulam Muhammad has been in occupation of the part of ihata since 1949, when they migrated to this village from India and when they were allotted C acres of agriculture land. He claimed that he has paid rent for this ihata and has also produced a receipt for the year 1955‑56 purporting to be signed by Muhammad Din Sepoy, Tehsil Chunian acknowledging receipt of Rs.

13. But the receipt is not in the normal pro forma. According to the report of the Tehsildar dated 30‑1‑1971 produced by the learned counsel for Chakmal petitioner no rent has been paid by Suleman or Ismail for this part of the ihata. In his statement before me Suleman has however, undertaken to pay the arrears of rent up to date. He has only pleaded that he would not be able to pay any penalty on account of his poverty, since he is an owner of only six acres of land along with his brother and earns the balance of his income by labour.

6. According to Government orders contained in memo?randum No. 1065‑70/1177‑CL. IV, dated 18‑4‑1970 and No. 1866?70/96‑CL. IV, dated 12‑1‑1971 it has been laid down that any genuine refugee who has been in continuous occupation of any A ihata for the last 10 years should not be disturbed and his occupation should be regularised by the Revenue Authorities. The order of the Assistant Commissioner and Collector Syed Al' Kazim, C.S.P., dated 5‑10‑1970 is defective to the extent that the has not taken into account the standing order of the Government in this regard and has proceeded to upset the possession of Suleman in spite of the evidence of Lambardar Fateh Muhammad of Chak No. 37 that Suleman was living in half of the ihata for the last 12 years. Vide Government Notification No. 837‑C, dated 1st March 1933 also it had already been held by the Govern?ment that sites occupied by proprietors or by Crown tenants of agricultural land and sites occupied by tenants not holding direct from the State was a proper utilization of village sites. In view of the above clear directions and decision of the Government not much weight can be given to the contention of the petitioner that because of his unauthorised occupation Suleman should be dispossessed from part of Maw of No. 37 at this stage.

7. In connection with unauthorised occupation it may be observed that in his statement before me Chakmal himself has acknowledged that he occupied part of Ihata No. 37, which according to him is 12 marlas, since 1947 when he migrated from Alwar State but that he has been paying rent for the ihata only since 1959 when it was regularly allotted to him. 1n other words he remained in unauthorised occupation of the ihata from 1947 to 1959 and defaulted in the payment of the rent as well.

8. With regard to the contention of the petitioner Chakmal that he was an owner of 30 acres of land and had grown up sons with families who had to be accommodated, the Additional Commissioner in his order dated 23‑1‑1971, has already decided that if the present portion of the ihata was not adequate for the requirement of Chakmal, he should be allotted an ihata site somewhere else in the village. The greater ownership and expansion of the family of Chakmal does not mean that Suleman respondent should be dispossessed from the ihata in which he had been living for the last 22 years.

9. It has been contended during the arguments by the learned counsel for Chakmal petitioner that in the report of the field staff it is Ghulam Muhammad son of Ismail who has been shown as unauthorised occupant of the ihata in question. In Tehsildar's report also it is Ghulam Muhammad's name which appears. He therefore, asserted that Suleman had no right for this ihata or to be impleaded as a party. In this regard however, it may be pointed out that all the lower Courts have quoted the name of Suleman as the occupant of the ihata and have dealt with him. In his statement before me Suleman has ex?plained that Ghulam Muhammad and he are brothers. Ghulam Muhammad has three children and he has two children and they are living jointly together. The point therefore, that the Patwari and the Tehsildar mentioned the name of Ghulam Muhammad as unauthorised occupant of the ihata in question instead of Suleman does not carry much weight.

10. With regard to question of payment of Rs. 50 plus Rs. 300, plus Rs. 65 by Chakmal in respect of the part of ihata under the possession of Suleman, it is obvious that if Chakmal petitioner is not given possession of this part of the ihata for which he made the payments, the amounts paid by him would be refunded to him.

11. In view of all the above circumstances and reasons, I do not see any justifiable grounds for interfering with the orders of the Additional Commissioner dated 23‑1‑1971 whereby he set aside the order of the Assistant Commissioner/Collector and gave orders for regularising the possession of Suleman in part of Ihata No.

37. The petition of Chakmal is therefore, rejected. Further consequential actions should also be taken to recover the rent from Suleman respondent, without penalty from 1949 up to date, to recover the arrears of rent from Chakmal for part of the ihata under his possession, without penalty, for the period 1947 to 1959 and to refund the amount of Rs. 50 plus Rs. 300 plus Rs. 65 paid by Chakmal. This refund could be adjusted against the arrears of rent for the ihata recoverable from Chakmal petitioner. Orders may be issued accordingly and parties may be informed. Orders accordingly.