2002 PLP 2420 (YLR)

Briefly, the facts, as borne out from the revision petition, are that land measuring 750 Kanals and 8 Marlas comprising Lot No.5 situated in village 10/3‑L, Kachhi Tehsil Shorkot, District Jhang was allotted to Fazal son of Malla Khan, the predecessor‑in interest of the present petitioners under Bara Reclamation Scheme in 1950. . The allotment order was implemented in the Revenue Record as per entries in the Khasra Girdawari pertaining to the years 1957 to 1961. Fazal Karim, predecessor‑in‑interest of the present respondents was a Tehsildar at that time and managed the lot in question on behalf of the allottee. Fazal Karim interpolated the record of the Colony Office with the connivance of the officials to grab the property in dispute and succeeded in obtaining an' order, dated 10‑12‑1965 from the Colony Officer for alienating 15/16 share in favour of the present respondents. On receipt of this order, the Patwari, vide daily diary entry of Roznamcha Waqiati No.271 dated 12‑3‑1966 sought clarification from the Girdawar Halqa to the effect that in Lot No.5 Zulfiqar Ali and Muhammad Iqbal Javed had been entered as share‑holders of 15/16 share alongwith Fazal Karim son of Ali Muhammad but the lot in question was in the name of Fazal son of Malley Khan. He wanted to know whether in the Sadar record the lot in question stood was in the name of Fazal son of Malley Khan or in favour of Fazal Karim son of Ali Muhammad Fazal Din, the predecessor‑in- interest of the present petitioners submitted an application to the District Collector, Jhang for conducting an inquiry and correction of entries in the Revenue Record relating to Lot No.5 allotted to him under Bara Scheme which Fazal Karim had manoeuvred in the Revenue Record in his own name by incorporation of bogus entries. The D.C. District Collector, vide Border, dated 30‑12‑ l 984, held that the lot was allotted to Fazal Karim son of Ali Muhammad, who alongwith his sons reclaimed the same fulfilling the conditions of the Scheme, and, consequently, his request was tilled. The allottee filed an appeal against this order before the Commissioner, Faisalabad Division Faisalabad, who, vide impugned order, dated .12‑1‑1987, dismissed the same. The petitioner tiled this revision petition challenging Commissioner's order before the Member (Colonies), Board of Revenue.

3. During the hearing of revision petition on 28‑9‑1988, the learned counsel for the respondents raised an objection that the order dated 30‑1‑1975 passed by Mr. S.M. Nasim, Member, Board of Revenue, Punjab toad never been challenged and since the Supreme Court had held in other cases that the order passed by Mr. S.M. Nasim, A.C.L.C. as Member (Colonies) Board of Revenue to be without jurisdiction, it did not mean that if a similar order, even if not challenged would be covered by the order of the Supreme Court. His contention was that the case was hit by the principle of res judicata whereas the learned counsel for the petitioner resisted the arguments and stated that the order of the Supreme Court with regard to the Jurisdiction of Mr. S.M. Nasim as applicable in all cases. After hearing the arguments on this objection on 8‑3‑1989, it was held by the learned Member (Colonies) that the present case was regarding manipulation of entries of the Revenue Record and he was competent to examine the issue before him. Being not satisfied with the order, dated 8‑3‑1989, the respondent No.1 filed Writ Petition No.2979 of 1989 in the Honourable High Court, Lahore and obtained a stay order. Due to stay order issued by the Honourable High Court on 12‑3‑1990, confirmed on 23‑4‑1990, the learned Member (Colonies), vide order dated 31‑5‑1990, adjourned the proceedings sine die till the decision of the writ petition by the Honourable Lahore High Court. The Honourable High Court vide judgment, dated 16‑10‑1995 dismissed the writ petition. The case was taken up for hearing again on the application of the petitioners tiled on 29‑11‑1995 after dismissal of the writ petition.

4. Muhammad Iqbal Javed, respondent No.2 died during the pendency of the case. His legal heirs were impleaded as a party to the proceedings and they were summoned. It w as not considered necessary to summon them as their predecessor‑in‑interest had recorded a statement singed by him and authenticated by his counsel Syed Saleem Raza, Advocate duly supported by an affidavit before the Deputy Commissioner to the effect that the lot in question was allotted to Fazal Din son of Malla Khan under Bara Scheme in 1950 and his father, Haji Fazal Karim was looking after his lot. He further stated in his application that Zullfiqar, his brother, had interpolated the Revenue Record and tried to get the name of Fazal Din changed with the name of Fazal Karim. According to him, his father was a big landowner and he could not even think of such a malpractice.

5. The arguments of learned counsel for both the parties were heard on 20‑12‑2000 and the citations produced on 7‑2‑2001 by the learned counsel for the respondents were placed on record.

6. It was contended by the learned counsel for the petitioners that Lot No.5 was allotted to Fazal son of Malta Khan by the Collector in 1950 and the allottee thumb- marked the order Annexure "P/1" which was interpolated by addition of the word Karim with Fazal. It also bore the signatures of Fazal Karim as was evident from the allotment order. However, the entries of Khasra Girdawari Annexure "P/2" show the allotment to be in the name of allottee Fazal son of Malta. He argued that the respondent's predecessor‑in‑interest succeeded in securing the order, dated 10‑12‑1965 after interpolating the record with the connivance of the colony officials for alienating 15/16 share in favour of the present respondents but the Patwari Halqa, vide Rapt Roznamcha Waqiati No.271, dated 28‑3‑1996 did not implement the same and he sent the same back with the report Annexure "P/3" for clarification as the allotment existed in the name of Fazal son of Mallay Khan and not in favour of Fazal Karim son of Ali Muhammad. He further argued that the Land Reclamation Officer Haveli Canal Circle, Multan also returned the Robkar vide report Annexure "P/4" to the Colonies Authorities requesting a probe into the matter. He stated that the allottee remained in cultivating possession through the respondent's predecessor‑in‑interest but due to some reasons withheld the payment of rent. Consequently, the crops were attached and sold to recover the rent. The entries in the daily diaries Annexures "P/5" and "P/6" show the name of allottee as Fazal son of Malley Khan. According to the learned counsel for the petitioners, the D.C./District Collector vide order dated 30‑12‑1984 Annexure "P/8" rejected the application Annexure "P/7" for a thorough probe. He contended that the Commissioner, Faisalabad Division dismissed the appeal Annexure "P/9" vide impugned order dated 12‑1‑1987 Annexure "P/10" without considering the report Annexure "P/ 11 " submitted by the Revenue Field Staff. The learned counsel . for the petitioners pointed out that unstamped application Annexure "P/12" submitted by the predecessor‑in‑interest filed by the respondents would show that the same had been inserted in the record after removing the application of the original allottee and the stamp affixed on the original application was not in circulation in the days when it was inserted. Applications Annexures "P/13" and "P/14" have been placed on record showing the stamps in circulation at the relevant time. A perusal of application P.12 would show that specific demand of Lot No.5 was made whereas in the other applications Annexures "P/ 13" and "P/14" no demand for allotment of a particular lot had been made. It was further contended that the request for allotment of land in question was alleged to have been made on account of being a refugee of District Amritsar whereas he inherited tae property from his father through mutation Annexure "P/15" attested on 22‑7‑1947 and Pedigree‑table Annexure "P/16" i.e. before the independence of Sub‑Continent. He stated that documents Annexures "P/17" and "P/18" would be admission of ownership of 15 squares of land by the respondent's predecessor‑in‑interest and that he was permanent a resident of Ahmadpur Sial, District Jhang. The document Annexure "P/19" shows the cultivation by the petitioner, after the death of Fazal Karim. according to the learned counsel for the petitioner, the District Collector failed to consider applications Annexures "P/20" and "P/21 " supported by affidavits submitted by respondent No.2 while deciding the case of the petitioners. It was contended that orders of both the Courts below may be set aside as fraud was visible in view of the above documents available on the file.

7. On the other hand, the learned counsel for the respondent No.1 contended that the allotment of land in question was made on the application dated 17‑6‑1.950 from one Fazal Karim son of Ali Muhammad Khan, predecessor‑in‑interest of the present respondents. He contended that after perusal of record, the District Collector, vide order dated 10‑12‑1965, allowed the association of his sons Zulfiqar and Muhammad lqbal to the extent of 15/16 share. He further contended that the appeal of the petitioners before the appellate Court was time‑barred and no application was filed for condonation of delay. He argued that scope of revision petition before the Board of Revenue was limited as only to law points and Board of Revenue was not required to go into minor details of the case. It was argued that the discussion of merits of the case tantamounts to overstepping the revisional jurisdiction. He further argued that the report of the EAC(R) is in favour of the respondents. The allotment was resumed due to non‑fulfilment of conditions and only the respondent went in appeal. It was questioned as to why Fazal son of Malla did not challenge this resumption order. It was inferred that he did not have any interest in this. He stated that the order dated 30‑1‑1975 has been passed in favour of Fazal Karim son of Ali Muhammad Khan, the predecessor‑in‑interest of respondents. According to the learned counsel for the respondent, a civil Court alone is competent to correct the long‑standing entries in the Revenue Record. He relied on PLD 1986 Rev. p.150 and PLD 1986 Rev. p.22 in support of his contention in this regard.

8. I have given due consideration to the arguments advanced by the learned counsel for both the parties and have examined the record referred to by both the parties. I have also perused the original allotment file produced by the representative of the District Officer (Revenue). A perusal of allotment order (Annexure "P/1") shows that land in question was allotted to Fazal son of Mallay Khan, the predecessor‑in‑interest of the present petitioners. It is also crystal clear that the word "Karim" has been added afterward Fazal and word "Ali" has been added before Mallay in the parentage whereas the word Mallay has been interpreted as "Ahmad". The interpolation has been made with a different ink and pen. The original allottee Fazal son of Malley had thumb‑marked the allotment order in token of acceptance of terms and conditions of the Scheme whereas the signatures reading as has been added below the the thumb‑impression while the word has been added in differ after the entries reading as. The date of allotment has also been interpolated. All these insertions and overwriting are very clear on the original allotment order which is recorded in a different ink. The entries in the Khasra Girdawari also show the cultivation of Fazal ud‑Din son of Mallay Khan from Kharif 1952 to Rabi 1961. The name of allottee Fazal son of Mallay Khan has been entered in the Fard Taqseem Arazi for the year 1950‑

51. Fazal Karim son of Ali Muhammad Khan succeeded in obtaining order, dated 10‑12‑1965 for association of his sons Zulfiqar and Muhammad Iqbal under section 19 of the Colonization of Government Lands (Punjab) Act. 1912 which was sent to the lower Revenue functionaries for implementation. The Patwari Halqa vide Rapt Roznamcha Waqiati No.271, dated 12‑3‑1966 (Annexure "P/3) sought clarification as to whether, according to Sadar Office the lot in question ,vas in the name of Fazal son of Mallay Khan or in the name of Fazal Karim son of Ali Muhammad as according to the Fard Taqseem, the lot in question was allotted to Fazal son of Mallay Khan whereas the alienation of share to the extent of 15/16 in favour of Zulfiqar Ali and Muhammad Iqbal Javed had been ordered on the application of Fazal Karim. Likewise, a Robkar for implementation was also forwarded to the Land Reclamation Officer, Havali Multan. He also forwarded a report (Annexure "P/4") that the lot in question was allotted to Fazal son of Malla in 1950. He further reported that share to the extent of 15/16 has been transferred to Zulfiqar and Muhammad Iqbal Javed in equal share with Fazal Karim allottee although Fazal Karim was not allottee of the land in question. He requested for probe into the matter. The proceedings for attachment of crops vide Rapt No.468, dated 11‑7‑1958 (Annexure "P/5") were initiated against Fazal son of Malley Khan defaulter against defaulted amount of Rs.415.50. The auction of attached crops was also carried out twice against Fazal son of Malley Khan vide Rapts Nos.218 dated 4‑1‑1963 and 394, dated 4th May, 1963 (Annexure "P/6"). On coming to know of the forgery and interpolation in t record, Fazal son of Mallay Khan, allottee submitted application (Annexure "P/7") to the District Collector for correction of record but his request was filed vide order, dated 31‑12‑1984 (Annexure "P/8") without considering 'the report dated 20‑1‑1981 (Annexure "P/11 ") of revenue field staff and the endorsement dated 21‑1‑1981 by the Assistant Commissioner, Shorkot without application of mind. Likewise his appeal (Annexure "P/9") was also dismissed by the Commissioner vide order dated 12‑1‑1987 (Annexure "P/10").

9. Another fact to negate the claim of the respondents being refugee from Amritsar is that the original application submitted by the original allottee Fazal son of Mallay was replaced with an unstamped application dated 17‑6‑1950 (Annexure "P/12") when the stamp affixed thereon was not in circulation at that time. The applicant in the case had requested for allotment of Lot No.5 in question whereas no other applicant had claimed allotment of any particular lot confirming their requests to allotment of land alone. Applications (Annexures "P/13" and 14) have been placed on the file in support of this contention. It is also astonishing to note that inheritance mutation (Annexure "P/15") from his father was entered on 22‑7‑1947 and sanctioned in favour of Jehangir, Alamgir sons of Abdul Karim in equal share giving them one half share and the remaining one‑half being given in favour of Fazal Karim, the predecessor‑in -interest of the present respon0ents as per Pedigree‑table (Annexure "P/16"). It is, therefore, clear that he was not a refugee from Amritsar. He admitted owing 15 squares in villages Ali Pur, Chak No.12 Tehsil Kabirwala and Kot Mela Ram, Tehsil Multan while standing of surety (Annexures "P/17" and "P/18") duly attested by Colony Naib Tehsildar on 15‑11‑1950 in cases of Mehr Din and Lal Din Licencedar of Chak No.10/3‑L. He was, therefore, not eligible to obtain an allotment under Bara Scheme. According to Khasra Girdawari (Annexure "P/19"), the original allottee again started cultivation after the death of Fazal Karim, father of Zulfiqar and Muhammad Iqbal Javed respondents.

10. It is also not out of place to mention here that Muhammad Iqbal respondent admitted in his statement made in writing (Annexure "P/20") supported by an affidavit dated 5‑6‑1983 available on the file to the Deputy Commissioner, Jhang through Syed Saleem Raza, Advocate that his father was manager of Fazal Din son of Mallay Khan who was allottee of Lot No.5 since 1950 under Bara Scheme. The lot was neither allotted to his father nor he transferred the same in his favour or his brother. According to him all the interpolations/over-writings F were made by Zulfiqar, his brother, by availing of the opportunity of the management of the lot by their father. All these documents undoubtedly show that the Lot No.5 was allotted to Fazal son of Mallay Khan in 1950.

11. The contention of the learned counsel for the respondent that the order dated 30‑1‑1975 had been passed in favour of Fazal Karim respondent by Mr. S.M. Nasim, Member (Colonies) and the petitioners have failed to challenge the same and, therefore, the petition is not liable to be maintained is not correct on the ground that the same was passed with regard to the fulfilment of terms and conditions envisaged in the Bara Scheme and with reference to the area having been brought under plough whereas this case relates to allotment allegedly obtained by Fazal Karim by interpolation and overwriting the entries in the Revenue Record.

12. The other contention of the learned counsel for the respondent that the scope of the revision petition is limited and it could only be decided on law point without touching the facts of the case is not tenable. In the instant case fraud has been committed by interpolating/overwritings to the entries of G Revenue Record to grab land. The lower Courts acted mechanically without applying their mind to the facts and circumstances of the case. Surprisingly, the learned Commis sioner did not discuss the manipulation in .the allotment order which is visible on the face of it. Overwritings and interpolations in the record have been made with different ink. Similarly, the District Collector, in his order, dated 30‑12‑1984 did not discuss the report dated 21‑1‑1981 by revenue field staff endorsed by the Assistant Commissioner, Shorkot on 31‑1‑1981. He also failed to discuss the application submitted to him by Muhammad Iqbal Javed son of Fazal Karim regarding fraud and manipulation of record by Zulfiqar Ahmad, the respondent.

13. From the documents placed on record by the petitioners and available in the Colony Office of the District Collector, Jhang, it is clear that the lot in question had been converted attempted to be converted in H the Fazal Karim son of Ali Muhammad Khan through fraud and forgery. The original allotment of Lot No.5 was made by the District Collector in favour of Fazal son of Mallay Khan in 1950 according to allotment order and the same merits to be restored in his favour as a genuine allottee of the lot in question. The revision petition is accepted and the orders, dated 30‑12‑1984 of District Collector and 12‑1‑1987 of Commissioner, Faisalabad Division, Faisalabad are set aside. The subsequent orders passed on the basis of fraud are of without any legal footing are also set aside. S.A.K./45/Rev. Order accordingly.